COVID-19

NYC Coops, Condos and HOAs – Covid-19 Vaccine Requirements for Employees and Contractors

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.

Mitchell-Lama Coop Governance Requirements About to Change

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.

Coop, Condo and HOA Employers can mandate Covid Vaccines in Most Cases

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

Helpful Legal Tips – Opening Up Association Amenities Amidst Covid-19

Coops, condos and HOAs are itching to open up amenities that were temporarily closed because of the Covid-19 Pandemic. We are starting to be asked by boards and management for legal advice about opening up pools, gyms, public meeting rooms, roof decks, playrooms, etc. Every association is different but here are some tips that we believe will be helpful.

To the extent authorized by the association’s governing documents and law, increased maintenance and cleaning expenses should be passed on to individual members using common facilities who fail to comply with applicable rules and regulations.

Most community association boards are generally and specifically authorized by their governing documents to make and adopt rules and regulations governing the use of the common element facilities. If your association has not already done so, the board should consider passing a resolution adopting new rules or amending current rules which impose on owners increased responsibility while using the common element facilities and specifically restrict the use of common facilities by owners and residents who are sick or may have been exposed to Covid-19. Such rules could require those who use the facilities to use appropriate sanitizing and social distancing measures. In which case, the association’s rules and regulations should entitle the association to impose upon the owner the increased costs or expenses associated with the increased cleaning as a result of their behavior. Adopting a disclaimer and waiver form for use of facilities could also cover this so that additional costs to make it safe are passed along to users as opposed to all owners.

Levy fines for non-compliance and earmark fines collected for COVID-19 prevention related measures.

Once the association has adopted its COVID-19 related rules and regulations, the board should be able to enforce them against violators. The board could consider earmarking non-compliance fines to help pay for the increased costs and expenses related to COVID-19 prevention. Be sure to examine your governing documents to make sure fines are within the board’s power. If not a bylaw amendment may be required.

Consider including a line item in the association’s operating budget for increased COVID-19 expenses.

The goal to keep your association community safe could be expensive. Rather than trying to figure out how to pay for it later, perhaps include a new line item in the annual budget. The other benefit is that owners will see (if they read the financials) that the board is proactively acting to make the community safe by planning ahead.

Consider opening only those common facilities and amenities for which the association has developed an enforceable plan of action.

There is no one-size-fits-all COVID-19 plan, and any prevention methods and measures adopted by the board should be tailored to the specific association. There is also no requirement that the association open (or close) all common facilities and amenities at the same time. Boards could open one amenity at a time and see how it goes and then govern accordingly.

Check with your insurance provider to see if there is coverage.

Before opening any amenity, boards and management should check with their insurance agents to see if their current insurance is adequate. We have learned that insurance companies are relying on exclusions in most policies regarding Covid-19 and not planning to cover certain losses. We will have to wait and see whether this turns out to be the case and whether new insurance coverage for such losses will be available at an additional cost. If there isn’t coverage for claims like people contracting Covid-19 at the pool and suing the association for not taking safety precautions, boards may decide not to open or to open only for persons who sign well crafted disclaimers and waivers. The trouble with those documents is that they may provide a defense to a claim, but the association may still have to pay to defend against it if there isn’t insurance coverage. Whether this is a risk the board wants to take will depend on the board. Boards that don’t want to take the risk themselves, could go to the owners for a vote on the matter and take the burden off of the board’s shoulders.

Covid-19 Condo, Coop, HOA Disclaimers

Covid-19 changed a lot. Condominium, cooperative HOA boards had to change as well. Protecting owners and residents in this new world presents many legal challenges and potential liabilities. Mitigating liability should be on the minds of every board and their management’s.

We haven’t seen an influx of Covid-19 liability lawsuits yet, but they will surely come in time. Insulating community associations and their boards and managers should definitely be on the agenda. Particularly because the insurance industry has indicated that COVID-19 claims will not be covered by insurance per the broad disease and health exclusions found in most policies.

So, what can be done? First, be careful and thoughtful in decision making. Make sure the board has authority to do what it is doing or not doing. This can be tricky, especially with ever changing federal, state and local laws. Before a board makes a decision that has legal implications, consult with an attorney and get sound legal advice. Boards are allowed to rely on the advice of their counsel and that will be a defense if their decision making is challenged by owners or others.

Keep a historical record of the decision making in well thought out minutes and other documentation. Sometimes lawyers will advise just to take minutes on the actual decision made by a board and not add too much detail as it is not required. The other school of thought and advice is to include details when you know the minutes are going to be used to help defend a board’s decision. This is a minefield that seasoned advice can help navigate.

Some boards are considering amending their governing documents to protect against Covid-19 liability for the association and board members individually. As with all disclaimers of liability, they are not a shield against the association being found liable for failing to take reasonable precautions to protect against foreseeable harm or injury. So, a disclaimer of liability, while helpful, is not and should not be relied on by the board to allow it to ignore open and obvious threats or dangerous conditions and take reasonable precautions to avoid them. Amending governing documents, however, is not a simple task and usually requires a meeting of owners and a vote in favor of the amendment by a super majority of owners. After passing, the amendment typically has to be recorded in the land records as well. If successful, a disclaimer of liability for COVID-19 and possible future pandemics is not such a bad idea considering that we expect insurance not to cover this liability, or become very expensive to procure such coverage. Adding a buffer in the governing documents against claims for which, as mentioned above, the association will not likely be able to insure against, should definitely be considered.

During the pandemic, some boards have adopted written waivers for owners and residents to sign before using common element. This is a policy that should be employed moving forward and will give the association and individual board members cover from liability. We’ll have to watch and see whether such waivers hold up in court after they are tested in court cases, but they certainly can’t hurt as another layer of protection. Doing them correctly so that they do not run afoul any other laws, such as discrimination laws, however, is certainly important.

Here’s a sample of an Assumption of the Risk and Waiver of Liability Relating to Coronavirus/COVID-19 form that one condo association adopted. We do not recommend the form, but wanted to give you an idea of what some association boards are adopting. If your association is interested in adopting such a waiver, it should be tailored to your association. There is not a “one size fits all” form that should be used.

The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people.

The Board of our condominium association has put in place preventative measures to reduce the spread of COVID-19; however, our condominium cannot guarantee that you or your child(ren) will not become infected with COVID-19. Further, rental of a unit and participating in common area activities could increase your risk and your child(ren)’s risk of contracting COVID-19.

By using the common area facilities in our condominium, you voluntarily assume the risk that you and your child(ren) may be exposed to or infected by COVID-19 by renting and occupying a condominium unit, and/or accessing and using the common areas and amenities including but not limited to the pool, exercise and game rooms, tennis and basketball courts, and other common areas, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. You understand that the risk of becoming exposed to or infected by COVID-19 at our condominium may result from the actions, omissions, or negligence of you and others, including, but not limited to, our condominium’s employees, and other renters and their families.

You voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to you or your child(ren) (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that you or your child(ren) may experience or incur in connection with our condominium or utilization of our condominium’s amenities (“Claims”).

On your behalf, and on behalf of your children, you hereby agree to release, covenant not to sue, discharge, and hold harmless the our condominium association, its Board, employees, agents, and representatives, and our condominium’s owners of and from the Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. You understand and agree that this waiver and release includes any Claims based on the actions, omissions, or negligence of the our condominium and its Board, employees, agents, and representatives, and our condominium’s owners whether a COVID-19 infection occurs before, during, or after your occupancy of a unit or use of the common areas at our condominium.

Again, each association is different and requires specific legal advice in order to protect itself from liability and other exposures. Staying ahead of the curve and doing everything legally and reasonably possible to do so, is important.

Federal Government Halts Some Evictions Again

Dr. Rochelle Walensky, the director of the US Centers for Disease Control and Prevention, extended an order today halting evictions for some people through March 31, 2021.

It covers people who earn $99,000 or less a year and cannot make payment because of a loss of income or extraordinary medical costs. Tenants must prove they have exhausted efforts to get government assistance to pay rent, are making some effort to provide payment, and will be forced to move to congregate living settings or left homeless by eviction.

Landlords have to press the issue and make tenants seeking this protection prove their eligibility. This however doesn’t mean the tenants are free not to pay rent. Rent is not excused.

Can Boards Require Covid Vaccines?

Over the next year, Covid-19 vaccines will hopefully become readily available to the general public. Boards of community associations will undoubtedly have to decide on vaccines. Can they mandate them of employees? Can they mandate that resident owners be vaccinated? How about tenants? How about property managers and other independent contractors? Will vaccines become a competitive advantage for contractors selling their wares or services because they are 100% vaccinated? Boards will have a lot to consider and ought to get current legal advice before making any business decisions on vaccines. This is a new world that we are experiencing, but there are all sorts of laws that have to be considered and new ones are sure to be enacted as we muddle through.

With respect to employees, the landscape is getting clearer but the answers are still a little cloudy. Soon enough someone will be fired or not hired because they are not vaccinated and we’ll have some case law to guide us. Here’s were we are on employees.

Mandatory vaccinations are not new but have been historically limited to health care and education market segments. While there is no clear legal prohibition on mandatory vaccines in the employment context, these requirements are subject to several legal exceptions, most notably accommodation for disability, religion and pregnancy.

On December 16, 2020, the Equal Employment Opportunity Commission updated its COVID-19 guidance to express the agency’s views on the legal implications of COVID-19 vaccine under the Americans with Disabilities Act (ADA), Title VII and other EEO laws. The EEOC’s guidance is not binding on courts, but it is expected to be highly influential. Key takeaways from the guidance are as follows:

A vaccine is not a medical examination under the ADA, but pre-vaccination questions answered by an employee as a part of an employer’s vaccination program may be ‘disability-related inquiries’ under the ADA that should be avoided absent business necessity.
Employers may need to accommodate an employee with a disability who cannot take the vaccine because of that disability.
Employers may need to accommodate an employee’s sincerely held religious beliefs or pregnancy, if either prevents an employee from taking the vaccine.

To date, the Occupational Safety and Health Administration has not taken a position on whether an employer can require the COVID-19 vaccine or must at least offer it to meet statutory safe workplace obligations.

Then there is the question of unionized employees. What does the Collective Bargaining Agreement in place say. There is no real question that the adoption of mandatory and non-mandatory vaccination programs by unionized employers are a mandatory subject of bargaining. But that does not mean that employers cannot start a vaccination program or require vaccination.

Employers with current union contracts should start by examining the management rights and other provisions of their contract to determine if they are broad enough to waive a union’s right to bargain. Even in the absence of a management right to proceed, most employers can still bargain over vaccine program issues with their unions. Most employers will also benefit from keeping their unions involved even if there is a management right to proceed with a vaccination program, as doing so can assist with employee buy in and avoid grievances (and adverse arbitration results).

Aside from the above, board employers need to consider the fact that while many employees may embrace vaccination without hesitation, a large percentage of people are reportedly skeptical or concerned about side effects or other unknown health implications. As time goes by and we learn from experience in vaccinations and their hopeful positive effect, people will likely be less concerned and apprehensive.

In the end, coop, condo, HOA and other community association boards. have to act in the best interest of their association communities. Making decisions on vaccinations are likely going to be on the board meeting agendas soon enough. Navigating these uncertain times is difficult without experienced professional advice.

Both Landlords and Tenants may be Better Off Working Out Covid Decisions Sooner than Later

Stay, go. Throw them out, keep them. Tenants and landlords will have to decide which route they want to go in these challenging economic times. The Covid pandemic has wrecked havoc on the real estate market and may continue to do so for awhile.

Tenants aren’t paying rent because they didn’t plan for these circumstances, or are just looking to renegotiate for better terms. Landlords with those nonpaying tenants are struggling as well. Some are over leveraged themselves with big loans to pay, taxes, other operating expenses, etc. that continue on irrespective of whether the tenants are paying. Without rent being paid, however, landlords risk default on their own obligations which can be crippling.

When disputes happen, there is always the landlord-tenant courts, but the pandemic has negatively impacted the court system as well. With a flood of nonpayment and eviction cases on hold when the court’s closed at the beginning of the year, there is an extreme backlog of cases and courts are still not open for in person appearances in many places, making virtual appearances the new norm. Judges, as well as the attorney bar, are slowly figuring things out, but cannot be relied upon as a quick fix to the economic and other woes of landlords and tenants.

We are seeing a lot of compromise across the negotiation tables. The parties are negotiating away rights. Sometimes deferring rent so that it will eventually become due, and in other cases, forgiving rent obligations. Tenants who want to stay in business, especially ones with personal guaranties backing their leases which are harder to run away from, are compromising as well. Sometimes, just turning over the keys to the landlord to allow for a new rental with a paying tenant is the best course of action. In those instances, landlords may recover possession but filling the space with a financially capable replacement is sometimes daunting; especially now.

As we progress through this pandemic, there is likely going to be a ripple effect on the economy from non-paying tenants and landlords who both aren’t willing to budge. Landlords who can’t easily get possession and still have to carry their debt and other business obligations, sometimes have to give in a bit in order to keep the tenants in business in hopes that they can start paying again. The word bankruptcy is being thrown around a lot these days, sometimes as a negotiating point by tenants. The risk of tenant bankruptcies is real and at the end the landlords are still left holding the bag of their own financial obligations.

Appreciating all of this, tenants and landlords are best to try to work out their differences early on and perhaps share the pain in renegotiation deals if it makes sense or negotiating early exists by a tenant if that makes more sense. Addressing the issues up front rather than kicking the can down the road to see what happens may be in everyones best interest. In the end, if too many cans are kicked it is going to get even more difficult to achieve a swift economic recovery which is in the best interest of both landlords and tenants.

Paycheck Protection Program seemingly opened up to Cooperatives but maybe not Condos – Call your Bank to be Sure ASAP

PPP loans for coops may have finally arrived. Call your bank asap. Unclear regarding whether condos are qualified as well. Condos should call their banks as well just in case.

NYC Coops, Condos and HOAs – Covid-19 Vaccine Requirements for Employees and Contractors

Mitchell-Lama Coop Governance Requirements About to Change

Coop, Condo and HOA Employers can mandate Covid Vaccines in Most Cases

Helpful Legal Tips – Opening Up Association Amenities Amidst Covid-19

Covid-19 Condo, Coop, HOA Disclaimers

Federal Government Halts Some Evictions Again

Can Boards Require Covid Vaccines?

Both Landlords and Tenants may be Better Off Working Out Covid Decisions Sooner than Later

Paycheck Protection Program seemingly opened up to Cooperatives but maybe not Condos – Call your Bank to be Sure ASAP

5 Things Property Managers Must Know about Zoom Board Meetings

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