Over the last few weeks, we have been social distancing, remaining home, wearing face masks in public and learning to live without hairdressers, nail salons, movies, plays, family get-togethers, dinner with friends and even routine preventative medical and dental care. We have suffered the loss of more Americans in these few weeks than will die in a year in automobile accidents or from kidney disease diabetes or pneumonia/ influenza, according to the Centers for Disease Control, particularly if we consider the estimated 36,000 Americans who died from the virus without being diagnosed and who are not currently included in the official COVID-19 mortality calculations, per the New York Times.
But we are New York Strong and are now ready to begin to consider a gradual return to a more normal life. Until there is a widely available, effective vaccine (which may not occur until late 2021, say some medical experts), we will be living with a highly contagious virus that is more lethal than influenza; the World Health Organization (WHO) estimates its mortality rate is as high as 3.4%, while the mortality from influenza is approximately 0.01%.
Life in the new normal will be different. For multiple dwelling buildings, including cooperative and condominiums, this may entail a shift in emphasis from cosmetic activities and personal service for unit owners and guests to worker safety, resident safety and building cleaning and maintenance. Worker and resident safety must be the priority. Otherwise, if workers are exposed to COVID-19, managing agents and boards may face liability under the Occupational Safety and Health Administration (OSHA) General Duty Clause and, for those of us living in New York, the New York Industrial Code.
The OSHA General Duty Clause provides:
“Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act.”
The New York Industrial Code General Duty Clause provides:
“All places where employees are suffered or permitted to perform work of any kind in construction, demolition or excavation operations shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection for the lives, health and safety of such persons as well as of persons lawfully frequenting the area of such activity. To this end, all employers, owners, contractors and their agents and other persons obligated by law to provide safe working conditions, personal protective equipment and safe places to work for persons employed in construction.”
OSHA has issued some general guidance and recommendations respecting worker safety and COVID-19. These include: isolating workers feeling ill, suggested cleaning protocols for the work place, providing hand sanitizing and hand washing stations and providing personal protective equipment (PPE).
Significantly, the OSHA guidance warns that the employer’s general duties are not waived, defined or limited by the guidance. Likewise, the New York State Department of Labor has not amended the Industrial Code — yet. If OSHA issues specific rules to prevent infections from COVID-19 in building maintenance, you should adopt those policies and procedures. As of press time, OSHA has not acted in this regard.
Without specific OSHA or state guidance, all managing agents and boards will have to develop plans to keep workers and residents as safe as possible relative to COVID-19. With apologies to Jonathan Swift, I offer the following modest proposal.
As a starting point, managing agents should consider establishing rules to ensure that no one from the staff suffering from a fever or cough is allowed in the building. This may potentially require that scanning thermometers be used to check for fever at the start of every shift. In addition, all workers should be provided with oral and written instructions on how to avoid exposure to COVID-19 as well as proper hand washing procedures on and off duty. If simple inexpensive swab tests with quick results for COVID-19 become available, they may have to be administered to the work force at the start of every shift. Rules requiring regular hand washing at the start of a shift, at least once during a shift and at the end of a shift should be instituted. Thus, all buildings will have to provide access to soap and water for this purpose. In addition, hand sanitizer stations should be provided for worker and unit owner use. Workers will have to maintain a six-foot distance during breaks and lunch periods.
Workers should be provided with masks, nitrile gloves and, possibly, goggles or face masks. In addition, workers will continue to need task gloves. All equipment, tools and materials should be disinfected at the end of every shift — portable spray devices are available that would make this easier. Work gloves, reusable face shields and safety gear, such as fluorescent vests, will also have to be disinfected after every shift. Single-use masks and nitrile gloves should be discarded after every shift.
Cleaning residential buildings must be a priority. Cleaning materials should contain disinfectant. Doors, door knobs, elevator button pads, elevator call buttons, elevator doors, door frames and cabs, walls, and mail boxes should be cleaned frequently.
Presently, building staff are generally not opening doors or interacting with residents. In addition, the staff is not assisting with residents with their bags. Packages are dropped at the door of the intended unit. These practices will need to continue indefinitely.
Residents with a fever or cough should be encouraged to remain in their units and not be in the hallways or lobbies, even with masks or face shields. Residents should be encouraged to avoid exposing their neighbors and building staff to COVID-19.
All of these changes pose difficult issues for managing agents and boards. The cleaning materials, swab tests, masks, shields, gloves and other equipment will be costly. The time required for administering temperature checks and regular hand washing could also be a significant cost. In this new normal, door staff will have less work, and it might be preferable to have fewer door staff to reduce crowding in the lobby. This may lead to pressure for staff reductions or reallocation of staff from doormen to porters, who are paid less.
Given the current economic climate, there will be pressure on managing agents and boards to find savings, not only to offset the increased cleaning costs but because unit owners are under financial pressure. Moreover, as happened after 9/11, there may be a temporary fall in the values of co-ops and condos which will increase pressure from the owners to reduce costs. This should result in every building looking at the staff and making decisions on how many door staff and porters are needed in the new normal.
We need to be practical and realistic. We may have to wait a bit before there is an effective vaccine against COVID-19. So, for now, we need to be prepared to make adjustments to the operation of co-ops and condos to maintain worker and resident health and safety and, at the same time, to keep the buildings economically viable.
This article presents a general discussion and is not intended to provide legal advice. Please consult your attorney for specific legal advice.
Carol A. Sigmond is Of Counsel at Porzio, Bromberg & Newman, P.C. Sigmond was president of the New York County Lawyers Association (NYCLA) from 2015 to 2017 and chair of the NYCLA Construction Law Committee (2007-2010). She is currently a vice president for the First Judicial District for the New York State Bar Association (NYSBA) and a member of the editorial advisory board for Construction Law 360. A fellow of both the American Bar Association and NYSBA, she received the 2020 Professionalism Award from the NYSBA Real Estate Section.