Healing the Legal Relationships Harmed by COVID-19: Part 2, LANDLORDS & TENANTS, WHAT TO Consider

April 24th, in a Freeman Lovell webinar, Josh Freeman and Michael Thomas discussed the impact of COVID-19 on legal relationships. This post is a supplement to that webinar. A recording of the webinar is embedded in the below post, or you can watch it HERE .

Written by Michael Thomas

In Part 1 of this post , we introduced some of the complications that may arise due to COVID-19 in what were previously well-functioning legal relationships. Businesses are reviewing their current and future contractual obligations more closely. And new statutes and regulations are being passed in different states, addressing a business's responsibility and liability when it comes to the novel coronavirus. In the State of Utah, for example, Governor Herbert signed into law the bill we discussed in the webinar providing immunity from civil liability for harm resulting from exposure to COVID-19 on a business owner's premises.

Tenants looking for a way out

The relationship between landlords and tenants has been among the hardest hit. Tenants find themselves struggling to pay rent or, in some instances, not able to make the most out of the space they have rented in the way they would like. Reportedly, some tenants have seized on an opportunity to have an excuse to forego rent payments even if they are in a position to pay! Does a pandemic mean that everyone can just walk away from their leases? Not necessarily.

A good starting point is the applicable contracts. For landlords: do you have a business interruption policy that may apply? And what does the lease provide that may apply to this situation? Has access been guaranteed? Has rent been conditioned on a certain level of access or peaceful enjoyment of the premises?

One relatively common contract provision that may apply is “force majeure,” or Act of God, terms. Such a term provides that performance is excused if an unforeseeable major event makes performance impossible. If a force majeure clause is in a lease, look closely at how it is drafted. In many instances, payment will not be excused; rather, providing the space may be excused. Without an express provision in the contract, common law (court-established) principles of “impossibility” or “frustration of purpose” can apply in similar ways.

Whether you are applying a contract provision or the common law, there is a difference between “impossible” and “burdensome.” A tenant typically takes on the risk that the lease could become less ideal, and that making use of the space could become difficult. So landlords should not bear the brunt alone of a change in circumstances.

student housing and co-working spaces

Student housing and coworking spaces present a unique challenge. Close quarters with other tenants can make compliance with public health directives impractical. However, consider that tenants in these spaces agreed to rent the space knowing that they would be sharing it. That means it is foreseeable that problems with other tenants could arise. If, as a landlord, you can do the things in your power to make the space safer, assuming compliance by all tenants, then coexistence becomes at most burdensome because of the other tenants rather than impossible because of something inherent in the property and the circumstances. The difference between “burdensome” and “impossible” could very well become the test for whether you are still entitled to collect rent.

Of course, maintaining a healthy working relationship with your tenants can be the best way to secure payment without resorting to legal action. Consider whether spreading out tenants, allowing deferrals, or implementing physical barriers can mitigate harms. What kind of safety precautions can you employ to make the space safer? The more we learn about COVID-19, the more ideas will arise for doing just that.

Part 3 of this post will provide an update on developments for employers. For the full webinar, see the link in this post.

RIFs and Furloughs, the Federal Way

By Adrienne Langmo • September 30, 2025
As the federal fiscal year draws to a close, thousands of federal employees face an unsettling possibility if a continuing resolution is not passed: not just another shutdown and temporary furlough, but permanent layoffs through Reduction in Force (RIF) notices. This week, the Office of Management and Budget (OMB) instructed federal agencies to consider issuing RIF notices to employees (if certain conditions are met) rather than the usual temporary Furlough notices issued during shutdowns. This is a big shift. But it does not mean layoffs are guaranteed. If they occur, federal employees are protected by a robust set of legal rights. There’s still a process before a RIF can be properly issued, complete with notice rights, retention rights, appeal rights and such other rights that the OMB does not purport to usurp. That said, we understand that the anxiety of this uncertain moment is real. Here are some tips to best prepare for the unknown, come the end of the federal fiscal year: Download Your eOPF, ASAP o Your electronic Official Personnel Folder may become inaccessible during a shutdown. Download it now to preserve your employment records. Download Your last 3 Performance Appraisals, ASAP o Include mid-year reviews and commentary. These documents may affect retention rights in a RIF. Also save records of other awards, commendations, and other notable performance records. Save Key Communications o Save emails, memos, or notices from HR or supervisors about your employment status or shutdown protocols. Ask Questions o Supervisors, HR, and union reps are navigating this too. Don’t hesitate to ask questions. If you receive a RIF notice or suspect you were subject to procedural violations, don’t hesitate to reach out to us for our advice. We are here to help. Shutdowns may be political. Your livelihood is personal. Let us help you safeguard it. -Adrienne Langmo, Partner

Demystifying FMLA

By Adrienne Langmo • September 12, 2025
If you're working for — or running — a business with under 50 employees, the Family and Medical Leave Act (FMLA) might seem like a distant federal regulation. But for eligible employees and covered employers, it’s a powerful tool for balancing work and life during major health or family events. Here's what you need to know. 🧩 The What The FMLA is a federal law that allows eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specific family or medical reasons, including: The birth or adoption of a child Caring for a spouse, child, or parent with a serious health condition Recovering from a serious health condition themselves Certain military-related family needs The leave can be taken intermittently, in blocks, or in one long swath. During FMLA leave, employers must maintain group health benefits as if the employee were still working. When the leave ends, the employee is entitled to return to the same or an equivalent position. 👥 The Who FMLA is mandatory for employers with 50 or more employees within a 75-mile radius. So, if your business has fewer than 50 employees at a given location, you’re not legally required to offer FMLA leave —but you can choose to adopt similar policies voluntarily. Employees must also meet FMLA eligibility criteria: Worked for the employer for at least 12 months Logged at least 1,250 hours in the past year Work at a location with 50+ employees within 75 miles *State employees may have additional benefits provided under state law. Here, we’re discussing private employers and employees. 🛠️ Employer Takeaways Treating employees appropriately during their FMLA leave and upon their return can present some hurdles for employers and coworkers, particularly when an employee has been on leave for some time and, e.g., projects or programs have evolved in their absence. You don’t have to navigate these situations alone; we can provide your team with the tools and information necessary to smoothly navigate the full FMLA process and avoid any sticky FMLA retaliation or interference claims. And, even if you’re not legally bound by FMLA, offering comparable leave can be a smart move. It builds trust, boosts retention, and shows you value your team’s well-being. Consider crafting a voluntary leave policy that mirrors FMLA protections, including: Clear eligibility rules Defined leave duration Job protection guarantees Coordination with paid time off or disability benefits For small businesses, this means you have flexibility—but also responsibility to communicate policies clearly. Want to overhaul those policies or craft great messaging to your team, give us a call! We’re here to make leave policies less painful and more practical. 📣 Employee Takeaways If you work for a small Utah employer, ask about your company’s leave policies. While FMLA doesn’t require you to use your accrued leave during your FMLA leave, it allows your employer to write into its policy a requirement that you do so. Make sure you read that policy! And, even if FMLA doesn’t apply, your employer may offer benefits similar to FMLA. If you’re dealing with a serious health issue or family emergency, document your situation, give notice as early as possible, and follow internal procedures. Need help understanding those procedures or your rights as an employee? We got your back! ⚖️ Final Thoughts FMLA is more than a legal acronym—it’s a lifeline for employees facing life’s biggest challenges. For Utah employers, understanding the law and choosing to offer similar protections can set your business apart. Whether you're an HR manager, CEO, or a team member, knowing your rights and responsibilities helps everyone navigate leave with clarity and compassion.

Moonlighting, Side hustles, and Non-Competes

By Adrienne Langmo • September 3, 2025
So, you’ve got an employee that wants to teach a night class? Drive for a ride share? Pursue a passion project on the side? That’s great…. Right? You can ensure it’s great for both you and your employee by entering a non-compete, non-solicitation, non-disparagement, and/or non-disclosure agreement and setting clear workplace boundaries . Non-Compete Agreements can help employers do damage control when an employee wants to branch out. Non-competes alone are limited, but when properly crafted and paired with the other agreements listed above, they can provide peace of mind and protection to employers. Utah law takes a close look at these agreements when it comes to enforceability, so don’t go it alone when it comes to crafting one. Boundaries Set boundaries with your employees on the use of their time, your equipment, and your company’s other resources like client lists or IP. And pay close attention with remote or telework employees where boundaries may be squishier. Here’s some examples where lines may get blurred: Can the employee use the office printer, or their allotted printing budget for their teaching gig? What if it’s just a couple sheets of paper? What if it’s their 100-page course outline? Maybe. Do you have an equipment policy that allows employees minor personal usage of the office equipment? Does it define “minor”? Might you want to update that policy if it doesn’t provide the clarity you need? We can help! Can the employee pick up a ride share client in the company vehicle while they’re out running an errand for the company What if it’s their personal vehicle? What if the trip is along the way, no deviation? Definitely not the company vehicle for insurance purposes of carrying a random person around. But otherwise, this raises the charmingly titled legal doctrine of “frolic and detour” where it is much less messy in terms of liability (for accidents, etc.) if the employee does not engage in personal errands while on the clock, when they’re supposed to be completing your company’s business. No double dipping. No frolicking, as tempting as frolicking sounds. Can they email one of the company’s clients with a question that’ll help them move things forward on their side project? Generally, probably not, especially if you have a non-solicitation agreement in hand. But, it may depend on more details than this scenario offers. When in doubt, talk about it with your employee, get an idea of what their end game is, and give us a call if you need a sounding board. Need help handling questions like these, updating policies, or putting together a non-compete agreement? We can help!