New York Governor Lifts COVID-19 Restrictions – Considerations for Co-Op and Condo Board Policies

June 18, 2021 Advisory

Under recently issued guidance from Gov. Andrew Cuomo, Boards are now free to eliminate most COVID-19 restrictions, including requirements for mask wearing and social distancing for vaccinated individuals, enhanced cleaning, responsible parties for amenity areas and reduced capacity for various facilities. While they are free to retain some or all of these requirements, the guidance makes clear they are not required to. They may also reopen some or all facilities and may set their own policies for their building. Unvaccinated individuals continue to be responsible for wearing masks and social distancing, in accordance with federal CDC guidance. Boards may either require proof of vaccination or use the honor system when vaccination status is an issue.

Before lifting restrictions, Boards should consider how they will handle mask and social distancing requirements for the following, who may not be vaccinated, particularly as they pass through lobbies, elevators and hallways, or use public facilities such as laundry rooms:

  • Contractors
  • Delivery people
  • Moving people
  • Household employees
  • Trainers
  • Social guests

Boards should remember that children under the age of 12 are not yet eligible for vaccination, particularly as this applies to children’s play rooms and playgrounds, and the exposure of the children to adults who enter these areas. Boards should also remember that unvaccinated individuals are still at risk and urge residents to be cognizant of that risk and allow the unvaccinated to socially distance in elevators and other limited space areas.

Boards should also be aware that permitting only vaccinated individuals in gyms, social rooms and other common facilities could constitute unlawful discrimination against residents who cannot be vaccinated due to medical conditions. They must either avoid adopting such rules, or be ready to make a reasonable accommodation in the form of exceptions to any “vaccinated only” rules if requested by a qualifying resident. Counsel should be promptly consulted if such a request is made.

In dealing with union staff, Boards may encourage, but may not mandate vaccination. They may ask whether staff have been vaccinated but must protect this information from disclosure and may not further inquire about medical conditions employees may have. Boards may require staff to wear masks and social distance, whether or not vaccinated. They may also allow vaccinated staff to leave masks off.

Rather than rushing to put a new policy in place, we recommend that Boards consider each of these groups and facilities and adopt a clear policy on each. We stand ready to assist Boards in determining the best policies for their buildings.

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