[Promo] FW: Attorney Article: Bruce Cholst, Deborah Koplovitz and Karol Robinson (Coop & Condo, March 2020) -- Coronavirus Containment: The Board’s Role

Wed Mar 25 21:12:57 UTC 2020

Hello Gotham.

I do hope this e mail finds everyone in our community safe and healthy.

As many of you know, Anderson Kill’s Coop and Condo Practice Group specializes in representation of Coop, Condo and HOA Boards.

I am pleased to share with you our most recent client newsletter entitled “Coronavirus Containment: The Board’s Role.” (See Below).

I hope some of you find our counsel helpful.

Remain Safe!

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[Co-op, Condo and Real Estate Advisor]

March 2020

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Coronavirus Containment: The Board’s Role

By Bruce A. Cholst<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-t>, Deborah B. Koplovitz<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-i> and Karol S. Robinson<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-d>

With the coronavirus deemed a pandemic by the World Health Organization, and government at all levels urging community mitigation strategies to slow the spread of COVID-19, coop, condo and HOA boards need to do their part to prevent transmission within their developments.

While it is incumbent on individual residents to take prudent measures within their units, such as self-isolating if they develop symptoms or learn that they have been in physical contact with someone else who has developed symptoms, boards are responsible for exercising due care in containing spread of the coronavirus from within common areas and from building staff, as well as for disseminating pertinent information so that residents can take protective measures of their own. Below we suggest protocols to help boards contain the spread of the coronavirus within their communities, along with possible adjustments to operating procedures to facilitate this objective.

Protocols for Containment

1. Compliance with Governmental Guidelines: The most crucial advice for boards is to comply with governmental guidelines for addressing the coronavirus. Two agencies in particular have issued directives, namely the Centers for Disease Control and Prevention<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-h> (CDC) and the NYC Department of Health and Mental Hygiene<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-k>. If buildings are directed by either of these agencies to take particular actions they should comply with alacrity.

2. Cleaning Protocols: The NYC Health Department in particular has prescribed a vigorous cleaning and disinfectant protocol for residential buildings. All public areas and high-traffic surfaces, including elevators, door handles and landings, should receive multiple daily cleanings. High-traffic areas such as laundry rooms should receive special attention in terms of cleaning. Amenities (if left open, contrary to our advice below) should be similarly cleaned, including gyms, playrooms and swimming pools. Signs should be placed in these areas reminding users to wipe down any surface areas they might have touched. Hand sanitizers should be placed in high-traffic areas such as near mailboxes, elevators, doors and the concierge desk. Vendors, contractors and delivery persons should be specifically reminded to use the sanitizers.

Most importantly from a legal perspective: Logs should be maintained documenting multiple daily cleanings and other cleansing efforts undertaken by staff so that management’s due diligence can be proved if necessary.

3. Social Distancing Practices: To limit unnecessary social contact, boards might consider temporarily closing non-essential public spaces such as gyms, playrooms, pools and community spaces. Boards should also consider limiting the number of people in an elevator at any given time. Residents should be required to pick up their deliveries at the building’s entrance to limit non-resident traffic in the hallways. Similarly, sellers’ open houses should be temporarily suspended, although continuation of individual apartment showings seems warranted. The practice of maintaining “convenience keys” at the concierge desk should be temporarily suspended. Board meetings and interviews (both admissions and interviews for staff positions) can and should be conducted remotely on a temporary basis. (Gov. Cuomo has just signed an executive order permitting corporate board meetings to be conducted remotely, through at least April 19.) Annual meetings can and should be adjourned until the pandemic subsides.

4. Restrictions on Non-Essential Staff Repairs: In accordance with NYC Health Department guidelines, staff members should pose two questions before entering a resident’s home:

  1.  Has anyone in the home had a fever, cough and/or shortness of breath?
  2.  Within the last 14 days, has anyone in the home traveled outside the U.S. or recently had contact with a person suspected or confirmed to be infected with the coronavirus?

If the response is yes to any of these questions and the repair is non-essential, it should be postponed for at least 14 days. If the repair cannot be postponed, the affected individual should remain in a separate room with the door closed for the duration of the repair or, if there is no separate room, be required to maintain a six-foot distance from the staff member and wear a face mask for the duration of the repair.

5. Dealing with Suspected COVID-19 Exposure or Disease: If management becomes aware, through self-identification or otherwise, that a resident has been exposed to the coronavirus or has COVID-19 (the disease caused by the coronavirus), the resident should be spoken to immediately to procure a commitment of self-quarantine and to ascertain the protocol for treatment and monitoring they intend to follow during confinement. If the resident is offering anything less than 100% cooperation, management should not hesitate to immediately notify the NYC Health Department.

If a resident has tested positive for COVID-19, they should commit to following NYC Health Department guidelines for the period of quarantine. That is, if testing is available, quarantine will continue until the resident and other unit occupants receive two negative tests, 24 hours apart. If testing is not available, quarantine will continue until the resident has had no fever for at least 72 hours — without use of fever-reducing medicine — and other symptoms have improved.

If a resident needs to go to the hospital to visit a COVID-19 patient, arrange for special, scheduled access to the elevator, with thorough disinfection to follow use. Building staff should manually send the elevator to the resident’s floor and clear a path for entering and exiting the elevator. While hospital visitation is extremely limited at present, that may be changing as testing and protective equipment become more readily available over time.

6. Disclosure of Identity of Suspected COVID-19 Exposure or Disease: In the event a building resident is either positively identified as having COVID-19 or as being exposed within the preceding 14-day period to someone who has the COVID-19 disease, we believe the board has a fiduciary duty to the other residents to apprise them of the situation so they have the opportunity to take whatever precautionary measures they deem appropriate.

The identity of the affected resident (including their floor or unit number) must, however, be concealed to avoid violation of privacy laws.

7. Dealing with Staff: Staff should be thoroughly trained in the cleansing protocols detailed above and instructed to log and document their due care to avoid legal liability. They should be instructed to stay home in the event of their own illness or in the event any family member has been exposed to or contracts COVID-19, and should under no circumstances be docked for any such illness. As with residents who contract or are exposed to COVID-19, management should disclose the fact to the building residency immediately while preserving the staff member’s anonymity. Staff members must be instructed to refrain from physical contact with residents, such as hugging and “high fives,” no matter what the occasion may be. It is important to note that the mandatory workforce reduction to 25% capacity directed by Gov. Cuomo exempts residential building staff members.

Adjustments to Building Operation

With the closure of New York City public schools through at least April 20 and restaurants open only for take-out and phone orders, building staff and resources will likely be taxed to the hilt over the next few months. The problem will become especially acute if there is a building staff shortage due to employees being quarantined or forced to stay home to care for their school-aged children. In addition to the foregoing measures concerning cleaning protocols, closing of public facilities and other social distancing provisions, staff management, and approaches to admissions and governance matters, boards might consider some of the following adjustments to address the increased operational burdens.

1. Food, Package and Dry-Cleaning Deliveries: In addition to social distancing considerations, the increased burden on building staff strongly supports a mandate requiring residents to pick up their own deliveries and dry cleaning in the building’s lobby until the pandemic subsides.

2. Suspension of Apartment Renovations and Non-Essential Building Projects: Apartment renovations and non-essential construction jobs obviously consume a significant amount of building resources. Boards should seriously consider a suspension of this type of work until the pandemic subsides.

3. Organization of a Corps of Volunteers: As previously noted, the pandemic may well result in acute shortages of available building staff. Boards might consider proactively organizing a corps of resident volunteers to perform functions ordinarily performed by building staff, or perhaps to bring deliveries (especially pharmacy deliveries) to residents with limited mobility. Volunteers might also be pressed into service to go shopping for or otherwise assist neighbors with limited mobility.

Enforcement of Pandemic-Related Procedures

When a board issues its list of pandemic-related measures to shareholders in the form of a letter, it might consider ratification of the measures at its next meeting to give the provisions the force of house rule, violation of which could be deemed a breach of the proprietary lease in the case of a coop or a violation of condominium bylaws.

As previously noted, the best means of dealing with a resident who refuses to self-quarantine when such action is appropriate is not through litigation, but rather through communication with the NYC Health Department.

Insurance Issues

For the past few weeks, Anderson Kill has been fielding a steady stream of calls about insurance coverage for coronavirus-related business income losses and has reviewed a range of clients’ property insurance policies along those lines.

You might be interested in these key takeaways:

  1.  Although property loss and business interruption coverage require physical loss or damage, the presence of a virus on property may constitute physical damage and trigger coverage.
  2.  Some policies specifically exclude coverage for losses caused by a virus, but many policies do not exclude such losses; and an exclusion for “pollution,” “fungi” or “bacteria” is not the same thing as an exclusion for “virus.” Moreover, even if a policy has an exclusion for virus, it may not necessarily apply to all of a policy’s different extensions of coverage.
  3.  There will be more and more government orders in the coming days and weeks that may trigger coverage for business income losses under civil authority provisions.
  4.  Many property policies have “contingent business interruption” coverage that covers losses where damage from the virus disrupts your supply chain — even if it occurs far away from your business.

Bottom line, it is a good idea to take a close look at your insurance policy wording, as well as the circumstances driving your company’s business losses, and make a careful analysis of whether you have coverage for some or all of those losses. My partners and I are hard at work looking into these important matters and we’re here to answer questions if you or someone you know might have them.

Anderson Kill’s Response to the Pandemic

We as a law firm have taken steps to make sure we can continue to provide you with excellent service despite the disruption created by the coronavirus.

We have great Zoom and Skype capabilities enabling us to meet with you electronically rather than in person. Our IT department can walk you through the process in the event you require assistance.

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ABOUT THE AUTHORS

[Bruce A. Cholst]

Bruce A. Cholst<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-n> is a shareholder in Anderson Kill’s New York office. Bruce represents cooperative and condominium clients in complex sponsor defect and sponsor arrears litigation, shareholder controversies, commercial and residential nonpayment actions, foreclosure suits, vendor claims, and board election disputes. He also counsels clients on corporate and governance issues and negotiates their commercial leases and management contracts.

bcholst at andersonkill.com<mailto:bcholst at andersonkill.com>
(212) 278-1086

[Deborah B. Koplovitz]

Deborah B. Koplovitz<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-p> is a shareholder in Anderson Kill's New York office and co-chairs the firm's Cooperative and Condominium Law Group. Deborah concentrates her practice in real estate litigation and general representation of condominiums, cooperatives and sponsors.

dkoplovitz at andersonkill.com<mailto:dkoplovitz at andersonkill.com>
(212) 278-1084

[Karol S. Robinson]

Karol S. Robinson<https://mailworks.priworks.com/t/y-l-uikdgt-tkikildthu-x> is a shareholder in the New York office of Anderson Kill. Karol practices cooperative, condominium, and real estate law with a focus on affordable housing, nonprofit organizations and general transactional work.

ksrobinson at andersonkill.com<mailto:ksrobinson at andersonkill.com>
(212) 278-1247

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Based in New York City, the firm also has offices in Philadelphia, PA, Stamford, CT, Washington, DC, Newark, NJ, and Los Angeles, CA.

©2020 Anderson Kill P.C.

This newsletter was prepared by Anderson Kill P.C. to provide information of interest to readers. Distribution of this publication does not establish an attorney-client relationship or provide legal advice. Prior results do not guarantee a similar outcome. Future developments may supersede this information. We invite you to contact the editor, Bruce A. Cholst, at bcholst at andersonkill.com<mailto:bcholst at andersonkill.com> or (212) 278-1086, with any questions.

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