UPDATE: Senate Bill S.8412—delivered to Governor Cuomo on June 5, 2020—amends Business Corporation Law § 708(b) to allow board members to provide written electronic consent for the board or committee to take action without a formal meeting. Board and committee members are permitted to provide electronic consent for the duration of the state disaster emergency declared by E.O. 202. In addition, S.8412 amends Business Corporation Law § 602(a) to permit a board of directors to hold shareholder meetings solely by means of electronic communication for the duration of the state disaster emergency.

We want to share with you questions and answers regarding COVID-19 that supplement our memorandum of March 13. These are an additional resource for multi-family building owners, coop and condo Boards, and managing agents (collectively, the “Landlord” or “Landlords”).

What are the Landlord’s legal obligations to protect buildings against COVID-19?
In general, an owner of a multiple dwelling has a duty to maintain the premises in good repair and in a reasonably safe condition. This standard of care may well be applied to the corona virus. Landlords should follow the guidelines from the CDC and local authorities which are outlined in our prior memo to limit the risk of potential claims. 

For further guidance please visit the CDC and NYC online guides.

CDC – Home Cleaning and Disinfection
NYC Department of Health Coronavirus Disease General Disinfection Guidance for Commercial or Residential Buildings, dated March 5, 2020 (the “NYC Guidance”)

What about Annual Meetings? Are In-Person Meetings Required?
As the annual meeting season is impending, is an in-person meeting required, may it be postponed, and may it be held by telecommunication or other electronic means?
 
Annual meetings may be delayed, despite any fixed date in the by-laws for a meeting. The Board may either amend the by-laws or decide to notify shareholders that the meeting will be delayed due to current health-related conditions. If a meeting is not held within 13 months of the previous annual meeting, a shareholder may petition a court to order a meeting. Such proceeding would take many months before an order was obtained, given the current status of the court system, so it is an unlikely remedy to be followed.
 
The Business Corporation Law allows an annual meeting to be held by reasonable means, which may include an audio webcast or other broadcasts of the meeting and voting may be conducted electronically via internet voting.
 
Each building’s by-laws should be reviewed to determine the best method for postponing the annual meeting or holding it via electronic means.

What about Board meetings?
Boards are not required to hold in-person meetings. The Business Corporation Law, Section 708(c), allows Board meetings to be held by conference telephone, provided that Board members may participate by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time.
 
Should the Landlord close all gym facilities?
Recently, Governor Cuomo announced an Executive Order that requires all gyms to be closed until further notice. The Executive Order did not distinguish between public or private gyms or gyms of a particular size, so the Order should be read as applying to all gyms of all sizes. The Executive Order reads, in relevant part: "Any gym, fitness centers or classes, and movie theaters shall also cease operation effective at 8 pm on March 16, 2020, until further notice."

What should the Landlord do in the event there is a suspected infected individual in the building?
If the Landlord or a resident has a reason to believe that a resident has contracted COVID-19 or is exhibiting symptoms of the virus, we recommend that the Landlord take the following precautions:

• Keep the names of suspected infected individuals confidential from other residents until consent to release the information to them is obtained.
• Obtain written consent from the suspected individual to share their status with the other residents of the building.
• Direct the building staff when interaction with the suspected individual is required to follow the recommended protocols as described in the NYC Guide, i.e. request the suspected individual to exit the room, wear a protective face mask, and properly sanitize after the visit.
• Advise all infected or quarantined persons that deliveries will be left outside the apartment door, that the delivery (or staff) person will ring the doorbell to advise of the delivery and will depart immediately without interacting with such person.

What should the Landlord do in the event there is an infected individual in the building?
In addition to the above, regulations require that the Landlord notify the authorities of a confirmed case.

• Landlords should alert all residents that there may be a confirmed case in the building, and remind them to follow the health guidelines. Landlords should explain the measures that are being taken to prevent its spread (e.g., the person is following all governmental protocols for quarantine). Personal privacy considerations must be taken into account, so Landlords should not name the infected individual or identify that person’s specific location, without obtaining that person’s written consent.
• The notice to residents should specify that the unnamed resident is self-quarantining, or that he or she is under governmental order not to leave the apartment, and that safety procedures are in place for ministerial tasks such as disposing of trash or receiving mail.
• If other building residents inquire who the infected resident is, to protect the resident’s right to privacy and to remove the fear that such person might be publicly ridiculed or shamed, Landlords should not disclose the infected person’s name or apartment, without obtaining that person's written consent.

If a Landlord learns that the infected person is not following protocol, then appropriate authorities, like the New York State Department of Health and the CDC, should be contacted immediately.

Who may be deemed “Essential Employees” for buildings to maintain resident services?
We have been asked which employees should be treated as “essential employees” should there be an order that all non-essential employees must remain at home?
 
New York State’s guide for their employees, during their COVID-19 containment efforts, states that essential employees shall include “Maintenance, Safety & Security, Fire Safety, Capital Services, Emergency Management, Food Service Workers, Housekeeping staff, Cooks and Cleaning Staff.” We can argue that the same rules should apply to building employees.
The Center for Disease Control (the “CDC”) defines essential business functions, jobs, or roles as those which are required to maintain business operations. So again, building employees needed to maintain operations should be essential.
The NYS Dept. of Health advises that essential employees are those which the building deems essential for the performance of services in that individual building. Therefore, doormen, porters, and supers may be “essential employees.”
Case law regarding the warranty of habitability also states that maintenance and janitorial persons perform essential functions for the building. Park W. Mgmt. Corp. v. Mitchell, 47 N.Y.2d 316, 329, 391 N.E.2d 1288, 1295 (1979). 
 
For all of the above reasons, we believe that maintenance, security, and cleanliness are considered essential functions to be coordinated for the health and safety of a building and its residents, and those performing these functions would be considered “essential employees.”
 
What should a Landlord do if a member of the building staff tests positive for COVID-19?
We recommend that the Landlord should send home all staff members who worked closely with that infected individual for a 14-day period to ensure that the infection does not spread and ask that the infected staff member identify all individuals who worked in close proximity (three to six feet) with him or her in the previous 14 days, to ensure that all potentially infected staff are sent home. In the event this results in a building having an insufficient number of available staff, Landlords may be required to find temporary staff. 
Landlords should also undertake deep cleaning of the affected workspaces and common spaces. Lastly and importantly, the Landlord should advise all residents that a staff member has tested positive and the building is taking all necessary steps and precautions to minimize risk to its residents.

What is the Board’s obligation to protect its staff?
The Board has an affirmative obligation to protect its staff as set forth by the Occupational Safety and Health Administration guidelines (“OSHA”) and provide a place of employment free from recognized hazards that may cause death and harm.

The following protocols are recommended by OSHA:

• Landlords should promote frequent and thorough hand washing, including providing staff and visitors with a place to wash their hands. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.
• Landlords should explore whether they can establish policies and practices, such as [note – we are talking about doormen and porters] flexible work hours (e.g., staggered shifts), increase the physical distance among staff and others because state and local health authorities recommend the use of social distancing strategies.
• Landlords should introduce options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services.
• Require staff to stay home if they are exhibiting symptoms of COVID-19.
• Encourage respiratory etiquette, including covering coughs and sneezes.
• Encourage staff when entering individual homes to inquire with residents if they are exhibiting symptoms of COVID-19 and if they have traveled to high-risk areas. If the resident answers yes to either of these questions, and the visit may be postponed, it is encouraged that the staff postpones the visit. If that is impossible, the resident should remain in a different room during the visit with the door closed, if possible, wear a face mask, and the employees should immediately wash their hands for at least 20 seconds with soap and water or use an approved alcohol-based hand sanitizer.
• Implement a course of action for prompt identification and isolation of infected individuals.
• Ensure there are face masks, hand sanitizers, soap, and sanitized towels readily available for all staff.

Additionally, the Board may issue the following questionnaire to staff which is compliant with ADA guidelines:
 

For further guidance please visit the OSHA online guide.
OSHA Guidelines for Employers

For further guidance please visit the below online guides.
CDC – Guidelines for Employers
EEOC -Guidelines

Can staff members refuse to work with residents?
Staff members may refuse to take on an assignment that is considered to be an unsafe work assignment. However, if another staff member deems the situation safe, has taken the necessary steps to protect against COVID-19 and the Landlord provides the staff member with proper gloves and equipment, then that staff member may perform the assignment. In this situation, we would recommend erring on the side of caution and requesting that another staff member who is comfortable with the assignment perform the task.

Is revealing the identity of a suspected or infected individual a violation of the ADA?
While Boards may have to engage in a balancing act of protecting its residents from infection and the privacy rights of suspected or infected individuals, the ADA might come into play. According to the Americans with Disability Act (the “ADA”), generally, the flu and other conditions which are lasting less than six (6) months are not considered a disability. (42 U.S.C. § 12102(1)) However, complications arising from COVID-19 may lead to a disability covered under the ADA. We would recommend that because Boards must maintain their fiduciary duty to their shareholders as well as individuals’ right to privacy (as medical records are confidential information) to refrain from sharing the status of a suspected or infected individual to other residents and staff; however, the Board could and should share the information with New York State Department of Health and the CDC.
 
Is revealing the identity of a suspected or infected staff member a violation of the ADA?
According to the ADA, generally, the flu and other conditions which are lasting less than six (6) months are not considered a disability also applies to employees (29 C.F.R. § 1630.2(j)) and as mentioned in the above, complications arising from COVID-19 may lead to a disability covered under the ADA and employment law. Due to the unknown risks and complications related to COVID-19, we recommend the Building err on the side of caution and refrain from disclosing this confidential medical information to a limited group, including: Supervisors (to implement necessary work restrictions and accommodations), first-aid and safety personnel (if the disability requires emergency treatment), workers' compensation state offices and insurance carriers, government officials investigating ADA compliance. Employers should refrain from sharing this information with co-workers and residents.

Is sharing the status of a suspected or infected individual a violation under HIPAA?
HIPAA is short for the Health Insurance Portability and Accountability Act. It provides patients’ security provisions and data privacy, in order to keep patients’ medical information safe. According to the U.S. Department of Health and Human Services (HHS), HIPAA’s privacy act only applies to covered entities and business associates of covered entities. Landlords are not considered such.
 
As COVID-19 continues to control and influence our daily lives, we at Gallet Dreyer & Berkey, LLP want to reassure our clients and their staff that we are on alert of any news and developments and available for any questions.