Preparations for Coronavirus (“COVID-19”) for Condo and Co-op Boards
We have received many inquiries about how cooperative and condominium boards should prepare in the event residents or employees have been exposed to or have contracted coronavirus/COVID-19. The Centers for Disease Control and Prevention (CDC) has kept its website up-to-date and we recommend you review it. To the extent you have employees who are members of a union, you should review your collective bargaining agreement concerning workplace illnesses, and you may want to consult with the union representative to address any concerns that your unionized employees may have concerning the coronavirus. Most importantly, boards should use common sense when addressing concerns about the virus.
Based on the recommendation of the CDC, to begin preparing for a COVID-19 epidemic in the U.S., prudent employers across the country are planning their response to an outbreak. Those preparations must take into account obligations and restrictions imposed on employers by applicable laws, including the Occupational Safety and Health Act (OSHA) and the Americans with Disabilities Act (ADA). Boards must be careful: while they should take steps to warn and protect employees and residents from known risks, they should avoid asking about the medical conditions of others that would violate the ADA or other state and local anti-discrimination laws regarding right to privacy (see Confidentiality and Medical Inquiries, below). In addition, boards should avoid measures that target anyone based on race, ethnicity or national origin.
Warning of Health Risks
Employers generally must provide work environments free from known risks of serious physical harm. Employers must investigate and take appropriate action to address known health risks, including informing employees of those risks. The same should hold true for a building’s residents. Boards should establish protocols for disclosure of information if a board learns that someone with COVID-19 has been on the premises. However, information on the identity of that person (or his/her family) should not be disclosed.
Confidentiality and Medical Inquiries
The law prohibits most disclosures of health information of an employee and his/her family. Likewise, laws generally prohibit disability-related inquiries made to employees (or about their family). Thus, at this point, until the government authorizes otherwise, the board should refrain from asking employees whether they or their family members have been diagnosed with COVID-19. The same considerations should apply to residents who exhibit symptoms of the virus.
What Measures to Take and to Avoid
In light of the living arrangements in all co-ops and condos, contact between residents is inevitable. While at the present time, there is much unknown about the transmission of COVID-19, the sharing of facilities (such as the elevator, laundry room and fitness facility) may allow for the transmission of the virus.
Bearing these principles in mind, boards should consider the following steps to prepare for the risk of COVID-19 outbreaks in their community or among their residents or employees:
- monitor information posted by the CDC and OSHA;
- communicate with employees and residents about best practices to avoid exposure;
- encourage anyone who is experiencing symptoms of COVID-19 (e.g., fever, cough, shortness of breath and other breathing difficulties) to seek medical care;
- inform employees and residents of known exposure risks in the building without revealing personally identifiable health information. Importantly, boards should consult with their legal counsel to determine how notification should be made in order to ensure compliance with the law;
- consider the potential impact of an outbreak and create a contingency plan for employee absences;
- increase the frequency of cleaning in all common areas, and have hand sanitizer available in public areas for use by employees and residents; and
- encourage employees and residents to wash their hands frequently and thoroughly.
However, boards should avoid the following:
- asking people to reveal their own medical diagnoses or the health status of their family members;
- targeting people within particular racial or ethnic groups, e.g., ethnic Chinese, for elevated scrutiny or disparate treatment in an effort to prevent viral exposure;
- revealing to others the identity of someone whose diagnosis is known; and
- taking adverse employment action against employees based on suspected exposure to COVID-19.
Boards should discuss the specifics of how to address any individual situation with counsel.
We will continue to update you as more information becomes available.