Staying Healthy:                                                            Property owners plan for H1N1 outbreak

October marks the official beginning of flu season. This year, we’re dealing with seasonal flu and H1N1, also known as swine flu.

Millions of Americans have been infected—coughing, sneezing and spreading germs everywhere—from the buttons in an elevator to the grocery cart handle. (The virus can survive for 72 hours on common surfaces such as faucets or door handles.)

The Centers for Disease Control (CDC) says 37 states have reported widespread influenza activity, while Guam and 11 states have reported regional flu activity. Experts estimate as much as 40 percent of the world’s population could contract H1N1 over the next 12 months, but a recent Harris Poll reveals 74 percent of U.S. adults say it’s unlikely they’ll contract H1N1 this year.

Nearly four of 10 people say they won’t wash their hands more frequently this flu season, and five out of 10 are not planning to take advantage of flu shots. For commercial real estate owners and managers, this means their buildings, which house hundreds if not thousands of people, could be hot spots for the H1N1 virus.

“Landlords and building managers should be keenly aware of their responsibilities in connection with the outbreak of swine flu,” according to Tara Gorman and Nelson Migdal, real estate attorneys with Greenberg Traurig who recently co-authored a report titled, “Inoculate Your Building: Landlord’s Responsibilities in the Event of an Outbreak of H1N1.”

Severe business interruption
A new Harvard School of Public Health study found that a widespread H1N1 flu outbreak this fall and winter could seriously cripple the ability of many businesses to operate. Two-thirds of the more than 1,000 businesses questioned in the study said they could not continue to operate with 50 percent of workers out sick for two weeks. Even fewer, 22 percent, said they could continue to operate for one month if half of their workers were stricken by the flu.

Interestingly, only a few businesses have prepared emergency plans for a widespread outbreak of H1N1. “Businesses need to start planning how to adjust their operations to account for greater absenteeism and to slow the spread of H1N1 in the workplace,” says Robert Blendon, professor of Health Policy and Political Analysis at Harvard.

For commercial real estate owners, an emergency plan should address their corporate offices and corporate employees, as well as their property portfolio, the people who keep their buildings up and running, and their tenants. The challenge is even greater for owners in the hospitality sector.

“For infrastructure providers like real estate owners, they not only have to consider the economics of their own business, but also the businesses they’re supporting and their interdependencies around them,” says Gary Lynch, executive in charge of the Marsh Pandemic Response Center at Marsh Risk Consulting.

Lynch says building owners should designate one person to supervise all collaborative planning with the key community organizations such as the city government, healthcare systems and even utilities providers. Moreover, this person should facilitate tenant relationships.

BOMA International urges managers to establish plans that will allow the building to operate with a minimum amount of staff and resources. To assist owners and managers with this process, BOMA has put together a checklist of proactive steps that businesses should take if their building is attacked by H1N1.

The organization recommends that owners and managers:

• Review existing continuity of operations plans (including reduced staffing levels of vendors) with management firms;
• Confirm that property managers have met with “Key Crisis Vendors” and discussed each group’s individual plans (key crisis vendors are those that are needed to support ongoing operations of the properties – janitorial, security, fire alarm maintenance, elevator maintenance, etc.);
• Identify potential areas where cutbacks in operations can occur and still maintain operations;
• Review programs to stockpile needed supplies to be used during emergencies (cleaning supplies, etc.);
• Confirm policies to back fill with properly trained individuals who know your sites.

Consider flexible sick policies
Businesses should plan for up to 30 percent staff absences for periods of about two weeks at the height of a severe flu outbreak, and lower levels of staff absence for a few weeks either side of the peak. Moreover, they should expect more than one outbreak or wave, either in the same year or in successive influenza seasons. The length of each wave of illness is likely to be six to eight weeks.

Businesses may have to consider having more flexible leave policies, not requiring notes from doctors and staggering shifts to handle a widespread outbreak, according to the Harvard report. Today, many employers have sick leave policies that are counter-productive in the event of a severe outbreak.

For example, three-fourths of the respondents in the Harvard study offer paid sick leave for employees, but only 35 percent offer paid leave that would allow employees care for sick family members. Even fewer companies, 21 percent, allow paid time off to care for children if schools or day care centers are closed.

Nearly half of businesses that offer sick leave currently require a doctor’s note to take that leave. More than two-thirds of businesses that offer sick leave require a doctor’s note to return to work after contagious illnesses.

Risk management experts suggest that businesses develop other policies such as allowing employees to telecommute (if feasible) or flexible work arrangements to reduce the number of workers who must be at the work site, at the same time, or in one specific location.

The CDC also suggests that businesses encourage employees to get the 2009 H1N1 vaccine when it becomes available, if they are in a priority group. Moreover, businesses should be willing to grant employees time off from work to get vaccinated if they want to receive the vaccine.

Dallas-based Encore Hospitality, for example, is “strongly encouraging” its staff members to get flu shots to “safeguard the health of the associates, as well as guests,” says President Glenn Pederson. The firm has made sure to communicate its willingness to give employees time off to be vaccinated. Moreover, it has offered to loan employees money to pay for the vaccines if they don’t have the funds.

Focus on personal and property hygiene
Property owners and managers can provide resources and a work environment that promotes good personal hygiene. Providing tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels can go a long way toward disease prevention.

Beyond that, owners and managers should keep their buildings clean, according to Gorman and Migdal. Experts from the CDC say there is no need for landlords to deep-clean their buildings to eliminate an influenza virus. However, the building owner should ensure the party responsible for cleaning the building, whether this task falls on the tenant, the landlord or both, uses cleaning materials registered by the Environmental Protection Agency for viruses and that the cleaning crews focus on heavy-contact areas—handrails, doorknobs and elevator buttons.

Moreover, building owners and managers should ensure their building is in full compliance with all applicable building codes and regulations. Although H1N1 is not currently spread through a building’s HVAC system, a virus mutation could eventually allow it to be carried through the HVAC system.

Gorman and Migdal contend that a landlord whose building is in full compliance with applicable building codes and regulations will have a strong defense, showing that it has acted in a commercially reasonable manner to keep its building safe and to protect its tenants.

Owner’s rights and responsibilities
In many respects, a building owner or manager only has so much control over its tenants, and the H1N1 pandemic has brought that to light, says Traci McCauley, associate vice president of NAI Norris, Beggs & Simpson, a third-party management firm based in Portland, Ore.

McCauley, who recently attended a summit on swine flu preparedness offered by the State of Oregon, contends that owners and managers must be careful about telling people what to do and what not to do. “We’re putting responsibility back on each tenant, and our primary message is that they need to have a plan in place,” she says.

In most cases, pandemics or other outbreaks are not expressly mentioned in leases. However, landlords may be protected under their general limitation of liability and the force majeure provisions, according to Gorman and Migdal.

Typically, leases contain catchall phrases in these provisions such as “or any other cause whatsoever beyond the control of Landlord and Tenant.” Clearly, the swine flu outbreak is “beyond the control of Landlord.”

In addition, the aftermath of the September 11 terrorist attacks resulted in the addition of express provisions in leases that allow owners the absolute right to restrict or prevent access to their buildings in response to an actual or perceived health or security threat. This clause gives the Landlord the right to close its building in the event of a swine flu outbreak.

“As landlords are in the business of providing safe buildings for their tenants, landlords would not close their buildings on a whim, but it is critical that landlords have the authority to do so if necessary,” according to Gorman and Migdal.

Focus on communication
As building owners tackle H1N1, it’s important to remember to communicate. So far, most businesses have done a poor job communicating with their employees, and building owners and managers must communicate with even more people—their tenants and vendors, to name just a few.

In fact, most workers have had no direction from their employers about the upcoming flu season, according to a national survey released today by Mansfield Communications Inc., a full-service marketing and communications agency.

The survey, which interviewed 1,028 workers, found that 69 percent of respondents say they have received no communication about policies in the workplace pertaining to H1N1— not even information related to hand washing or sick leave. Alarmingly, the poll found that a large majority (84 percent) of American workers believe the recession creates more pressure to show up for work—even if they are feeling sick.

“Many workers are understandably concerned about how absenteeism due to sickness will impact their job security in the current economic environment,” says Rob Ireland, partner at Mansfield Communications Inc. “However, sick employees coming into the office during the H1N1 flu season will undermine the health and productivity of the entire workplace.”

Ireland adds: “Employers need to clearly communicate with employees about such things as extended sick leave policy and procedures to minimize the spread of infection. During a pandemic, employers must become trusted sources of information and help employees make the right choices.”

Although the majority of workers surveyed (80 percent) felt they were knowledgeable about precautions that should be taken if the virus reached their workplace, roughly about half said they would still engage in public activities (such as riding the bus, picking up a prescription or grocery shopping) even when they were infected with H1N1 and required to stay home due to a company-imposed quarantine.

“The gap between professed knowledge and practice is alarming,” Ireland says. “Nearly half of respondents said that they would continue to engage in public activities with full knowledge of their infection. Clearly, there is much to be done to educate America’s workforce and help people act appropriately in order to contain the spread of H1N1.”

Helpful links:

www.pandemicflu.gov

www.cdc.gov/h1n1flu/general_info.htm

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