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BLOG / 05.28.20 /Eric P. Blaha,Jeffrey D. Buss,Kenneth R. Jacobs,Emanuela Lupu,Thomas W. SmithandDomenick J. Tammaro

COVID-19: Guidelines for Reopening Buildings

Guidelines for Reopening Buildings

The pressure to relax the guidelines for access to condominium and cooperative buildings, including their common facilities, has been growing. Boards need to develop a plan for handling the increased risks that come with increased traffic within the premises and social interaction among owners. The following assumes that you have guidelines for staff and visitors in place already for the current “Pause” phase.

A.     Before Reopening.

1. Check your insurance coverage. Know whether your liability and D&O insurers will (i) defend, and (ii) cover claims against the Association or individual managers relating to Coronavirus exposure. Will they defend with a “reservation of rights” (to decline coverage if liability is found), or will they flatly deny defense as well as coverage?

2. Consult with your staff. Involving your staff from the beginning will avoid many surprises when your plan is implemented. Do you need supplies or more PPE, or installation of a plexiglass barrier at the front desk? What rules of engagement are you setting for staff members who may be concerned with entering individual units? Is any additional training required to ensure adequate protection? Would your staff object to having their temperature taken when they report to work?

Will you have sufficient staff coverage to deal with the increased need for disinfection that comes with expanding access to infrastructure and common facilities (not just pools and gyms, but elevators and service entrance)?

3. Create appropriate signage and barriers. You will need warning signage relating to disinfection reminders, occupancy restrictions, hours of operation, use of elevators and stairways, and off-limits areas. You should be prepared to install tape or physical barriers to designate restricted areas.

4. Communicate your plans to your owners. If you do not re-open, it may be unpopular with the owners, so communicate your reasoning and intent frequently to them as the region moves from Phase to Phase.

5. Consider your additional costs. Plan for any additional costs of supplies, staffing, disinfection, monitoring and enforcement, to the extent they can be anticipated when you resume previously barred activities.

B.     Use of Common Facilities. First and foremost, do not be bullied into reopening a common facility before you are ready. This is a classic business judgment issue for the Board. Remember that you are highly unlikely to have insurance coverage for COVID-19 claims arising in connection with the use of the facility. And at the risk of sounding overly cautious, if you get sued for NOT re-opening, that is a smaller claim, and has a better chance of being defended and indemnified by your Directors and Officers Liability insurer, than claims due to illness contracted after reopening begins.

If you cannot provide appropriate guidelines and protection, the risks of reopening exceeds the benefits of avoiding the ire of 5% of the owners who don’t care about those risks. With that in mind:

1. Determine Guidelines for Hours of Operation and Maximum Occupancy. There are numerous options available to set maximum occupancy at any one time, based on whether you allow only individual or household use, or base use on percentages of the maximum permitted occupancy under the Fire Code or your Certificate of Occupancy. Take into account the need for more frequent disinfection, social distancing requirements, and whether the facility is supervised. Several apps allow owners to make reservations for use of amenities, such as Mindbody, Sign-up Genius, and Courtserve.

If you are not basing occupancy on straight numbers, will you allow more than one household to use the facility at a time? Will you allow guests? (We recommend No at this time.)

Special Issues for Pools. Most pool management companies recommend allowing a percentage of maximum occupancy based on various ratios. We also recommend limiting pool use by any particular individual to a maximum number of hours per day (say three). Certain activities (water volleyball, etc.) should be explicitly prohibited. Please feel free to contact us if you would like a specific set of recommendations for pool use.

2. Install signs. Install signs specifying the rules for use and occupancy of the amenity during the reopening period. Clarify what areas (if any) are off limits. Remind people about the need for hand-washing and other disinfection procedures.

3. Liability waivers. We recommend that you require anyone using the pool, gym or other previously closed facility to sign a waiver and indemnity form, acknowledging that Coronavirus is contagious and can be contracted in numerous ways, that no representation is made that use of the facility may or may not facilitate COVID-19 infection, agreeing that the Association will have no liability for any illness, injury or death in connection with Coronavirus in connection with the use of the facility, and indemnifying the Association against any expenses incurred in defending any such claim made by a user related to the homeowner. A sample form is available upon request.

4. Keeping Logs; Providing Training; Monitoring for Illness. Keep logs identifying the users of the facility. If the facility is supervised, make sure that the supervisors (lifeguards, etc.) know the rules for use and personal protection. Reserve the right to take the temperature of staff and supervisors who will be entering the facility for disinfection or other reasons, and to bar visitors who exhibit any signs of illness.

5. Observe Physical Distancing and Personal Protection Guidelines. If you are not restricting use of a facility to individual households, make sure that everyone observes the medical recommendations for social distancing and wearing of masks and gloves where appropriate. You’re not going to require masks or gloves at the pool, but how about the gym? (See also below.)

(a) Special Issues for Gyms. Social distancing may be difficult if more than one person uses the gym at a time. Consider creating additional distance between machines by physically separating them or even prohibiting use of certain equipment to maintain distance. Staff should also be prepared to disinfect more regularly, since gym equipment has many potentially infectious surfaces.

(b) Moving Furniture. Move (or remove) furniture to comply with social distancing guidelines.

6. Laundry Rooms. Laundry rooms contain many surfaces where Coronavirus could reside. Therefore we recommend special precautions, such as wearing masks and gloves, having disinfection equipment on hand, requiring wipedowns of machines to be used before use (and surfaces after use), folding laundry at home rather than in the laundry room, observing physical distancing guidelines, or even limiting hours or numbers of occupants at any one time.

The CDC recommends particular types of disinfectants, and also recommends doing laundry using the warmest water possible and making sure that your load is thoroughly dry.

C.     Visitor Access. Decide what standards you will apply to allow visitors into the building.

1. Housekeepers, nannies, dog walkers. Regular visitors to the building should be required to wear masks and gloves at all times. They should also sign liability waivers upon entry.

2. Rules for Social Visitors. Determine what rules you will establish for occasional visitors.

(a) Masks in common areas. (Consider whether you want gloves as well.) Do you have additional PPE to distribute to visitors if necessary? If you provide PPE, where will masks (and gloves) be discarded upon exiting?

(b) Temperatures taken? Some Associations are requiring all visitors to have their temperatures taken before entry. Visitors that show signs of illness may be barred.

(c) Liability waivers? Some Associations are requiring the same liability waivers from visitors as from contractors and domestic workers, and adding representations that the visitor has not traveled to a foreign country within the past 14 days. A sample waiver is available upon request.

(d) Parties and social gatherings. The Governor’s orders currently restrict social gatherings to “ten persons.” Is that an acceptable size? Medical authorities are still suggesting lower numbers.

(e) Social distancing in common areas. Continue to enforce physical distancing guidelines within the common areas of the building.

(f) Bags, gifts, etc. Do you treat packages brought by social visitors as “deliveries” and subject to the same pickup rules as groceries or Amazon?

3. Logs; Contact Tracing. Consider keeping a visitor log to assist in contact tracing in the event of future illness.

D.     Brokers and Open Houses.

1. PPE; Numbers; Observing Building Rules. In most ways, brokers should be treated similarly to domestic workers. They should wear masks and gloves, and sign liability waivers.

We lean toward imposing the same standards on their invitees rather than treating them as “social visitors.” A broker and a prospective purchaser are more likely to visit other common areas in the building than the ordinary social visitor, increasing the risk of exposure. A building might consider explicitly restricting access to other parts of the building beyond the applicable apartment, even though that partly defeats the purpose of an inspection.

For the same reasons, we believe the Association should restrict the number of persons accompanying the broker at one time. Prospective purchasers and tenants should be escorted by the broker throughout the visit.

Make sure that the broker and their invitees observe building rules regarding elevator occupancy, entry into common facilities, masks and gloves. Brokers who violate these rules (or who permit their invitees to violate them) should be barred.

2. Open Houses. We would discourage “open houses” unless strict standards of entry and numbers are followed, with escorts from the lobby and serial scheduling.

E.     Move-ins and Move-outs; Deliveries.

1. Insurance; Liability Waivers; PPE. As with as any other contractor or service provider seeking entry into the building, movers should provide insurance and execute an appropriate waiver of COVID-19 liability and indemnity as a condition of entry. Masks and gloves must be worn at all times. Social distancing should be maintained.

2. Entry; Elevator Use. Entry should be restricted to the service entrance. If a service elevator is available, only that elevator should be used. Required social distancing guidelines should be observed.

3. Management of Personnel; Moving Teams. Movers should use two teams for move-outs: one to move property from the apartment to the elevator (and load), and one to remove the property from the elevator and take it to the van. (Obviously, vice versa for move-ins.)

4. Hours. Hours might be more limited to allow extra time for disinfection of elevators and common areas after the move, or (if no service elevator is available) to take the longer waiting periods for other building occupants due to social distancing in the remaining elevator[s] into account. If possible, packing should be done in advance of the actual move-out to limit exposure.

5. Additional Costs. The building may need to delegate additional staff to monitor use of the elevator and handle disinfection. These costs should be borne by the homeowner.

6. Deliveries. In addition to the current requirements for large deliveries maintained by the building, deliveries should be treated like moves, except that delivery teams may not be required if only one or two elevator trips are required.

F.    Alterations.

1. Priorities for Resumption of Alterations. Who gets first priority for use of the elevator: The owner who has been waiting the longest? The owner whose alteration had been interrupted? The owner needing to perform/finish work in order to move in? Or the owner demonstrating the greatest “need”, in the Board’s discretion? These can be sticky business judgment issues for the Board.

2. Modifications of Alteration Agreements.

(a) Deadlines. Deadlines in Alteration Agreements may need to be extended to take the delays into account. The parties may need to consult with your building architect or engineer to set up a new schedule.

(b) Noise. Is the lockdown still in effect for individual owners? Noisy alterations may disrupt more owners than expected. Schedules may need to be modified or special precautions taken to conduct noisy work.

(c) Signing Agreements. If an Alteration or Decoration Agreement was never signed, now is the time to insist on execution.

(d) Authority of superintendent/resident manager. If the Agreement does not clearly give authority to the superintendent, managing agent or resident manager to stop work, it should do so now.

(e) Social Distancing. See below.

3. Social Distancing; Compliance with Law. New York State requires all contractors resuming construction work to provide plans for complying with “physical distancing” requirements. These plans should be examined for adequacy and modified where necessary. We have drafted a “Physical Distancing Addendum” for use with construction contracts, available upon request.

Contractors should comply with all standards for conduct of work established by OSHA and the New York State Department of Labor. Employees should meet the same requirements for entry into the building as building staff (temperature checks, masks and gloves, etc.)

4. Liability Waivers and PPE. As with any other contractor or service provider seeking entry into the building, contractors performing alterations should provide insurance and execute an appropriate waiver of COVID-19 liability and indemnity as a condition of entry. Masks and gloves must be worn at all times.

5. Entry; Elevator Use. Entry by employees should be restricted to the service entrance. If a service elevator is available, only that elevator should be used. Required social distancing guidelines should be observed.

Employees may not use any building facilities (restrooms, etc.). All tools must be either kept in the apartment or removed from the building.

6. Hours. Hours might be more limited to allow extra time for disinfection of elevators and common areas after the move, or (if no service elevator is available) to take the longer waiting periods for other building occupants due to social distancing in the remaining elevator[s] into account.

7. Additional Costs. The building may need to delegate additional staff to monitor use of the elevator and handle disinfection. These costs should be borne by the owner.

8. Coordination of Work and Deliveries. Your superintendent or resident manager may need to coordinate work schedules and deliveries of equipment and supplies more closely than normal.

G.     Communication with Owners. It is vital that the Board communicate the rules to owners clearly and frequently. Signs should be installed in the lobby, the mail room, laundry room and other common facilities detailing the rules and reminding all owners of the need to wash hands, maintain physical distance, and respect others. Bulletins should be distributed when regulations change. Regular communication will diffuse the inevitable dissatisfaction with the pace of reopening.

The standards that you adopt will need to be tweaked from time to time as rules for the Region change. If you maintain open communication and even-handed enforcement with residents, contractors and visitors, though, you will keep your building – and your residents – safer.