Ventilation and reducing the risk of COVID-19 transmission in retail spaces
Improving air quality
In an effort to increase indoor air quality and reduce the transmission of COVID-19 through the air, businesses and employers are being urged to install air purifiers that contain high-efficiency particulate air filters (HEPAs).
The Western Australian government has already rolled out its ‘Safe Return to School Plan’ where it proposes to install 12,000 air purifiers in schools State-wide.
However, at this stage, there is no actual obligation on business owners or in relation to retail spaces.
It is well known that effective ventilation can reduce the concentration of airborne COVID-19 particles by either removing or diluting contaminated indoor air. HEPAs are able to do this by scrubbing 99.97% of aerosolised virus particles from the air1.
As, buildings and centres close their doors and windows for more effective heating and cooling, this means that occupants and patrons are not getting the same amount of fresh air. This can lead to a build-up of airborne pollutants including COVID-19.
The Department of Health has issued a factsheet on COVID-19 and building ventilation. It recommends that employers in shared premises and without direct control over heating, ventilation and air-conditioning systems (HVAC) discuss the appropriate ventilation requirements with building owners or centre managers.
As most tenants in retail centres have no control over the HVAC, landlords should expect to receive requests from their tenants about how better ventilation is going to be implemented in the building.
As a first step, landlords should check if the existing HVAC system is compatible with HEPA filters.
The law
There is currently no statutory requirement or public health order that requires landlords to equip their buildings or centres with HEPA air purifiers.
However, employers and persons conducting a business or undertaking (PCBU) should be conscious of their obligation to maintain a safe workplace under existing and incoming work health and safety legislation. This duty requires employers and PCBUs to ensure so far as is reasonably practicable, the health and safety of their workers while they are at work.
In the context of the COVID-19 pandemic, this duty arguably extends to an obligation to take reasonable steps to prevent the spread of COVID-19 in the workplace, including the promotion of social distancing, hygiene and routine cleaning. This means that tenants (as employers) will be taking extra steps to ensure that their employees have a safe working environment, which may now include proper ventilation.
Under the incoming Work Health and Safety Act 2020 (WA), which is expected to take effect in the coming months, a person conducts a business or undertaking whether they conduct it alone or with others, and regardless of whether the business is conducted for profit or gain. Accordingly, depending on how a centre is managed, a landlord may be a PCBU and therefore owes that duty to all workers in a centre, including volunteers, contractors and contractor’s employees. This could also extend to a contracted centre manager who employs their own staff.
Landlords under retail leases should also be aware of what their lease documents say. In particular, consideration should be given to:
Cleaning and maintenance obligations are important instances where the landlord is recovering these costs through the outgoings. This implies the obligation that the landlord is in fact cleaning and maintaining the premises to the required standard.
Whether or not a landlord owes a duty to its tenants to install air purifiers will depend upon the terms of the lease and the centre itself and any changes to the law. If air purifiers are readily available and can be installed with relative ease, there may be an argument that the landlord has that duty.
The other consideration for landlords is the obligation (if any) to the general public who enter their centres and buildings. There is no specific legislation dealing with this issue. However, we think landlords will most likely have a duty of care to the public to take reasonable steps to ensure a reasonable level of air quality in their centres and buildings.
What you should do
The COVID-19 environment is changing daily in Western Australia. The public’s attention is drawn swiftly to new hotspots and exposure sites as they are announced. If landlords are considering installing HEPA air purifiers to their centres, now is the time to do it, particularly given the broader definition of persons who owe a primary duty of care, and to whom they owe that duty, that will shortly apply to centres.
Landlords and tenants should also be reviewing their lease documents and preparing to take any required action as the current outbreak progresses. In negotiating new leases, clauses relating to the installation of HEPA air purifiers, the reporting of positive COVID-19 cases and access to the centre should be considered.
Lavan’s Property and Leasing team has been assisting landlord and tenant clients navigate their way through the pandemic. Please do not hesitate to contact us if your building, centre or premises has been affected of if you require any advice.
Acknowledgement
Jay Bebbington, a lawyer in our Property and Leasing team, made a significant contribution in the preparation of this article.
[1] There are many types of air purifiers that are suitable for different settings. The University of Melbourne has produced a guide to purchasing the appropriate air purifier.
