This clause requires an employee or employer to take reasonable steps to minimize the impact of unforeseen circumstances (such as natural disasters, pandemics, or wars) that prevent performance of employment duties. Rather than simply excusing non-performance, the clause imposes an affirmative obligation to mitigate—meaning the affected party must actively work to reduce harm, resume operations, or find alternative arrangements. For example, during a facility closure, an employer might be required to attempt remote work arrangements, while an employee might need to demonstrate efforts to work from home or assist in contingency planning. This clause matters because it prevents parties from passively accepting disruption and shifts some responsibility for problem-solving to both sides, potentially reducing disputes over who bears the cost of the force majeure event.
The practical significance lies in clarifying expectations during crises. Without mitigation language, a party could invoke force majeure and simply stop performing indefinitely. With it, both parties have skin in the game to restore normalcy. However, the clause can create tension: what constitutes "reasonable" mitigation is subjective and context-dependent, and parties may disagree about whether sufficient effort was made.
If you are an employee, ensure the mitigation obligation is reciprocal and that "reasonable efforts" is defined with specific examples (e.g., "reasonable efforts means attempting remote work if technically feasible, but does not require working without compensation or in unsafe conditions"). If you are an employer, clarify that mitigation does not require extraordinary expense or unsafe practices, and specify which party bears costs of mitigation measures. Consider adding a timeline for when mitigation efforts must begin and a mechanism for documenting compliance. Include language that excuses mitigation if it would be impossible, illegal, or unsafe.
Frequently Asked Questions
What does this clause mean in simple terms?
This clause requires an employee or employer to take reasonable steps to minimize the impact of unforeseen circumstances (such as natural disasters, pandemics, or wars) that prevent performance of employment duties. Rather than simply excusing non-performance, the clause imposes an affirmative obligation to mitigate—meaning the affected party must actively work to reduce harm, resume operations, or find alternative arrangements.
Why should I care about this clause?
For example, during a facility closure, an employer might be required to attempt remote work arrangements, while an employee might need to demonstrate efforts to work from home or assist in contingency planning. This clause matters because it prevents parties from passively accepting disruption and shifts some responsibility for problem-solving to both sides, potentially reducing disputes over who bears the cost of the force majeure event.
What are my options?
The practical significance lies in clarifying expectations during crises. Without mitigation language, a party could invoke force majeure and simply stop performing indefinitely.
How does this affect small businesses?
With it, both parties have skin in the game to restore normalcy. However, the clause can create tension: what constitutes "reasonable" mitigation is subjective and context-dependent, and parties may disagree about whether sufficient effort was made.