Businesses permitted to reopen pursuant to Governor Andrew Cuomo’s order must follow the mandatory guidelines as set forth by the State. Each industry has its specific set of regulations and protocols with which business owners must comply. Executive Order No. 202.38 issued June 6, 2020 (the “Order”), states in pertinent part that commercial building owners and those authorized on their behalf to manage public places within their buildings and businesses (“Operators”) shall have the discretion to require individuals to undergo temperature checks prior to admittance, and the discretion to deny admittance to someone who refuses a temperature check or whose temperature is above State guidelines. The Order gives some immunity from a claim against an Operator that is subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of the Order’s directive.
Operators should have written safety plans outlining the steps intended to be take in order to prevent the spread of COVID-19 within their buildings. The State Department of Health has issued a safety plan which serves as a template for Operators in developing a written plan. In lieu of the State template, Operators may develop their own safety plan. The plan need not be filed with the State but should be retained on site and made available to Health Department authorities in the event of a building inspection. The essence of the plan is intended to provide that commercial buildings have cleaning, disinfection and contact tracing plans prior to reopening to assist in the prevention of the spread of the virus and be able to react should there be positive cases in the building.
Some of the key elements of the plan include screening people on site and ensure that the individual (1) did not have COVID-19 symptoms in past 14 days; (2) tested positive for COVID-19 in past 14 days; and/or (3) had close contact with a confirmed or suspected COVID-19 case in past 14 days. Responses must be reviewed and documented daily on a log. Additionally, signage throughout the site is required to remind personnel to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfecting protocols. Seating and furniture must be rearranged/marked to ensure that individuals are not sitting within 6 feet from each other. For jobs that require close proximity, the individuals must wear proper face covering to prevent any potential spread of the virus. Communications must be properly and consistently maintained to monitor and minimize any risk of spreading the virus.
Operators are required to address common areas of the building such as lobbies and elevators. Certain common areas such as cafes and lunch rooms should not open. Tenants, on the other hand, are primarily responsible for implementing guidelines in their respective leased premises. To that end, tenants too should have written safety plans to mitigate the spread of COVID-19 within their leased premises. Both Operators and tenants should be prepared to implement new policies should new mandates be handed down by the authorities to enable both parties to remain in compliance with State or local mandates.
We recognize the unique time we are living in, and the fact that further information or directives regarding the prevention or containment of COVID-19 may be forthcoming, and resilience and ability to adopt to new standards will be important going forward. We are also mindful that the costs associated with COVID-19 prevention measures will be a burden on both Operators and tenants. Current leases may address allocation of operating expenses, and landlords will want to rely on broad language in such clauses to enable them to recapture these costs from tenants. Tenants, in contrast, will want to evaluate lease provisions to determine if certain of these costs fall on the landlords and not tenants. For example, a lease that includes security services or cleaning services included in the base rent may be the basis of a tenant maintaining that such costs should remain with the landlord. We expect that these considerations and more shall play out over time as we proceed under the new normal. FDT will continue to monitor and analyze the changing legal environment.
The below chart is primarily for the real estate industry. Other industries may require additional safeguards or protocols to be implemented. In addition, we direct your attention to (i) Reopening New York – Real Estate Guidelines for Employers and Employees (which includes a recitation of mandatory protocols as well as recommended best practices) and (ii) Getting Back to Work: Preparing Buildings for Re-Entry Amid COVID-19 published by BOMA International (Building & Owners Managers Association) which includes a comprehensive approach for building owners and managers), for which links are provided herein and are a source of additional information that owners and managers may want to consider.
For more information or to speak with us about these and other considerations, please contact Partner Brian R. Sahn at bsahn@forchellilaw.com or Jane Chen at jchen@forchellilaw.com.
COVID-19 REOPENING PLAN: REAL ESTATE INDUSTRY |
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Category | Mandatory Protocols |
Physical Distancing |
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Protective Equipment |
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Residential In-Person Property Showings and Related Activities |
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Hygiene and Cleaning |
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Communication |
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Screening |
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