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Editor's Note: The following clause may be adapted for use in commercial supply and services agreements to address purchaser or service providers’ concerns regarding the nature of the counterparty's workplace practices in connection with the novel coronavirus pandemic. Such a representation may become more common now that workplace safety issues take on increased importance as businesses re-open from Covid-19 shutdowns.
[Company][Client] represents and affirms that its facilities [at or from which Products being supplied hereunder are manufactured or sold] [to which Service Provider's employees and agents will have access in connection with rendering Services under this Agreement] comply with [all relevant] [the following] authoritative guidance and governmental directives relating to Covid-19 workplace safe operating practices, [including]:
• Cleaning and Disinfecting
• Staggered Work Shifts
• Employee Wellness Checks and Sick Leave and Absenteeism Policies
• Personal Protective Equipment and Other Safety Clothing and Supplies
• Social Distancing and Limits on Gatherings
• Masks/Face Coverings
• Hand Washing
[Company][Client] represents and affirms that all personnel working on [Company][Client] premises have received and will continue to receive [recommended] [required] safety training and information, and will be updated in the event that any training or information is modified or replaced.
Comment: Note: the safe working practices listed above are illustrative and not exclusive. For additional information and guidance, see Guidance on Preparing Workplaces for COVID-19 (U.S. Department of Labor, Occupational Safety and Health Administration), Workplace Reopening during Coronavirus, and Bloomberg Law's Coronavirus (Covid-19) Toolkit.
With businesses continuing to reopen following the Covid-19 shutdown, increased focus is being given to employee and business invitee safety. Legislative efforts to shield businesses from liability for exposure to Covid-19 in the workplace rely in part on the implementation of practices that are widely recognized as reducing the likelihood of person-to-person and airborne exposure to the virus. A representation regarding adherence to accepted workplace safe practices gives some assurance to the counterparty that its employees, contractors and other agents will not be unreasonably exposed to contamination from products sourced from the representing party or from access to that party's facilities. The counterparty will want to ensure that such standards are being met in the event that it is required to make a similar representation to its customers and service providers.
Value/Risk Analysis: Inclusion of this representation in a commercial agreement is evidence of the purchaser's/service provider's efforts to protect its employees from Covid-19 exposure when they work with the counterparty's products or provide services at the counterparty's facilities. Additionally, the purchaser/service provider will want to confirm the accuracy of the representation periodically by seeking a certification and/or conducting site visits. Should this representation become more prevalent and widely required, its absence may support a negative inference that the party failed to take reasonable steps to learn of or protect persons from unnecessary exposures.
• Definitions of Covid-19, Products and Services
• Covenant regarding periodic re-affirmation of representation