New York City’s requirement that all employees who perform in-person work or who interact with the public must show proof of vaccination against COVID-19 prior to entering the workplace went into effect on December 27, 2021. See NYC Commissioner of Health and Mental Hygiene Order. This applies to all employers including cooperatives, condominiums, and homeowners associations. Boards and their management must deny access to any employees who have not provided proof of vaccination unless they have a religious or medical exemption. Requests for those exemptions should be vetted for authenticity and propriety. The City provided some guidance and a form that can be used regarding exemptions.
Boards and their management must bar unvaccinated employees withiout an exemption from the workplace building, and can fire or discipline the employee. Consulting with experienced counsel beforehand is suggested to keep the association out of trouble; especially with these laws coming and going.
There are exceptions to the general rule such as workers who work from home or whose employment does not involve interacting with others, or individuals who enter the workplace for a quick and limited purpose.
There are also record keeping requirements for the employers. All records created or maintained by the employer must be treated as confidential and stored in a secure location separate from an employee’s regular personnel file, and available to only those employees or employer representatives who have a legitimate need to access the information. There are also posting requirements for the employers that have to be made. The association has to post a certification of compliance with the law in a conspicuous location like a lobby.
There are fines that may be issued for noncompliance. Noncompliance with the Order can result in fines up to $1,000 per violation with escalating penalties if violations persist. It is not clear yet how vigilant the City will be with enforcement but we expect that there will be some enforcement in order to deter employers from noncompliance. But, the City has set up a whistleblower hotline so we except there to be oversight from that perspective at least.
A subtle gem in this law is a requirement that the associations keep a log book of requests to contractors who work in the building as to whether they have been asked if they and their workers are in compliance with the law, and the contactor’s response. The law doesn’t require the association to make the inquiry of the contractor but if it does, then the exchange must be logged. Contractors by the way, are not just building contractors, but contractors for residents incuding nannies and housekeepers.
Governor Kathy Hochul has signed a bill that exempts cooperatives from the restrictions in the 2019 Housing Stability and Tenant Protection Act. The law inadvertently lumped coop boards with commercial landlords because of the tenant-landlord relationship that exists in housing cooperatives.
Coop boards can once again collect more than one month’s maintenance as security deposit. Coops historically required some purchasers with marginal financial profiles to escrow several months of maintenance as a condition for the coop board’s consent to the purchase.
Because the law is no longer applicable to coops, coop boards can charge more than the the $50 cap on late fees and allows coop boards to impose late fees equal to 8% of the monthly maintenance. The $20 cap on application fees has also been removed, allowing coop boards to charge appropriate fees for background, credit and criminal history checks, as well as transfer agent fees. Most importantly perhaps, coop boards can now collect legal fees, late fees and other charges from proprietary shareholders.
On August 12, 2021 the United States Supreme Court issued a temporary injunction barring enforcement of Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Residential Moratorium”). In Chrysafis et al. v Marks, 594 U.S. ____ (2021), the Supreme Court held that the Residential Moratorium’s hardship declaration mechanism, which “generally precludes a landlord from contesting th[e] certification [set forth in the signed hardship declaration form] and denies the landlord a hearing . . . violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” and as a result enjoined enforcement of the Residential Moratorium. A copy of the ruling is available here. Thus, at least for the moment, residential landlords don’t have to serve the hardship declaration form together with pleadings and predicate notices as the Residential Moratorium had previously required. However the landscape is still complicated because various New York State legislators have proposed extending the Residential Moratorium to October 31st. Such an extension, if enacted, would likely involve a different moratorium mechanism that complies with the Supreme Court’s ruling by providing some form of hearing in connection with a tenant’s hardship claims. More complication but at least due process. Even if New York State does not extend the Residential Moratorium, New York landlords may be constrained by the application of the federal CDC moratorium, which is also being challenged in court.
On the commercial front, the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (the “Commercial Moratorium”) contains a hardship declaration mechanism that is virtually identical to that contained in the Residential Moratorium. However, the Commercial Moratorium was not before the Supreme Court and its current status is not clear. Nevertheless, with the Supreme Court’s holding that the hardship declaration mechanism violates due process, it appears certain that the Commercial Moratorium will not be extended beyond August 31 in its current form, if at all.
The bottom line is that the eviction landscape is still complicated and with politicians trying to make it difficult to evict and court’s moving at a slow pace, landlords need to be careful and aggressive in order to get what they need.
Westchester Coop Boards have new law to deal with. The parade of horrible litigation over rejections could result. A minefield of legal complication for boards and management to navigate.
The new local law amendment requires boards to provide a notice of rejection to the Westchester County Human Rights Commission with 15 days of notifying prospective buyers of a denial. It also requires coop boards to disclose their minimum financial requirements to potential buyers.
https://therealdeal.com/tristate/2021/06/30/westchester-compels-co-op-boards-to-justify-rejection-of-buyers/
Hallelujah. When new law passes, the constraints by the Tenant Protection Act like the recovery of legal fees in housing actions will not apply to coops.
Read more.
Mitchell-Lama reform bill (A.7272/S.6412) has passed both the New York State Assembly and Senate and now heads to the Governor’s desk. Once signed, here are some of the changes that Mitchell-Lama Coop Boards and their managers need to know:
- the board must hold at least six public meetings each year.
- proxy voting is eliminated and replaced with an absentee ballot system.
- dissolution will be a lot tougher because the threshold needed to voluntarily dissolve will be 80% of all dwelling units and back-to-back dissolution votes cannot be held, because there will be a five-year moratorium following a failed dissolution vote.
- Finally, any and all formal steps toward privatization can’t take place until the last of the Executive Orders related to the COVID-19 state of emergency expires or is rescinded.
Read more here.
Coop, condo and HOA employers can mandate that most employees be covid vaccinated according to the new pronouncement by the EEOC. However employers can’t violate provisions in the American with Disabilities Act (ADA). They should also adhere to religious exceptions, local and state law, among other considerations. Tread carefully and watch for new Occupational Safety and Health Administration (OSHA) guidelines as to safety measures in the workplace.
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
NY State Human Rights Law Section 296 entitled “Unlawful Discriminatory Practices,” now requires housing providers to “disclose to all tenants and prospective tenants of their right to request reasonable modifications and accommodations if they have a disability. . . . ” (the “Notice”). Housing providers include those who have the “right to rent or lease” apartments. So, cooperatives have to comply and so do condo boards that own and rent units. If a coop tenant subleases or a condo tenant leases their unit, they also have to comply with the law and provide the Notice. The Notice must be delivered to all tenants and prospective tenants on or before April 2, 2021, or within 30 days of the tenancy beginning. This is going to be a headache for coop and condo boards. Stay tuned for more.
Here is a sample notice that the NYS Division of Human Rights crafted.
The Board of Managers of the Oceana Condominium No. Two learned recently that withholding the waiver of the right of first refusal cannot be used to block an unwanted condo sale.
In this particular condo, the President of the Board owns and lives in the unit directly below the unit being sold, and he allegedly did not want children living above him. The prospective purchaser has young children, and the President also allegedly did not want a sale for the low sales price. The contract was subject to short sale approval by the bank holding the first lien on the unit, a short sale which had been approved by the sellers bank. The purchaser claimed that the Board was troubled that it would appear in the public record and lower the value of the units in the development, so the Board interfered with her contract with the selling unit owner, so she was not able to purchase the unit. The condo board did not choose to exercise their right of first refusal, but they would not provide the document which this development ordinarily provides, stating that they were not exercising their right of first refusal. Without this document, the purchaser’s lender refused to close. The sale was lost as a result of the Board’s delay, the holder of the second lien on the unit foreclosed on the unit, preventing the purchaser from closing and the purchaser sued.
The Court threw out all of the claims against the Board and individual Board members except for a tortuous interference with contract claim against the Board. So, the litigation continues, with escalated legal fees and costs escalating because of the decision making by the Board or its President. In this particular case it appears that directors and officers insurance responded with a defense but even then the condo is responsible for paying a deductible and claims like this can impact future insurability and/or the cost of insurance. In some cases, we’ve seen individual board members ask for their own counsel because of possible conflicts of interests considering the Board President there seems to be the primary culprit.
With some good legal advice and management guidance, this situation could have been contained and avoided. For the Oceana Condominium No. Two, the saga continues.
Read the decision here.
