How Multi-Family Building Owners, Coop And Condo Boards, And Managing Agents Should Deal With COVID-19
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 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 audio webcast or other broadcast 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 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 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 which may cause death and harm.
The following protocols are recommended by OSHA:
Landlords should promote frequent and thorough hand washing, including by 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), to 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.