Guidelines for The Real Estate Industry: COVID-19 Phase II Protocols

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
Category	Mandatory Protocols
Physical Distancing	Ensure that workforce and customer presence total occupancy is limited to 50% of the maximum occupancy for a particular area as set by the certificate of occupancy. A distance of at least 6 feet must be maintained amongst all individuals at all times, unless safety of the core activity requires a shorter distance. If the minimum 6-foot requirement cannot be maintained, then acceptable face coverings must be worn ensuring that mouth and nose are covered. Prohibit the use of confined space (e.g., elevators or vehicles) by more than one person at a time, unless all individuals are wearing face coverings. Occupancy of confined spaces should be kept under 50% of maximum capacity. Modify seating areas (in common areas) to ensure that individuals are at least 6 feet apart in all directions. Non-essential common areas (e.g., game rooms) must remain closed. Implement practice to maintain adequate social distancing in small areas, such as break room or restroom. Reduce interpersonal contact and congregation though various methods (adjusting workplace hours, limiting in-person presence to necessary staff, reduce on-site workforce, etc.). Establish designated areas for pickups and deliveries.
Protective Equipment	Provide the workforce with acceptable face covering at no-cost to the workers/contractors and maintain adequate supply of coverage in case of replacement. Acceptable face coverings include, but are not limited to, cloth (e.g., homemade sewn, quick cut, bandana) surgical masks, and face shields. Clean, replace, and prohibit sharing of face coverings. Advise workers and visitors to wear face coverings in common areas. Limit the Sharing of objects, such as tools, laptops, notebooks, telephones, touchscreens, and writing utensils, as well as the touching of shared surface, or require workers to wear gloves when in contact with shared objects or frequently touched surfaces; or require workers to perform hand hygiene before and after contact.
Residential In-Person Property Showings and Related Activities	Showings are allowed in unoccupied or vacant properties. All individuals visiting the property will be required to wear a face covering at all times. Replace or clean and disinfect gloves after every showing. Clean and disinfect high-touch surfaces. Stagger showings in order to avoid congregation of people outside and inside properties. Open houses are only allowed with one party inside the property at a time.
Hygiene and Cleaning	Adhere to hygiene, cleaning and disinfecting requirements of the CDC. Provide and maintain hand hygiene stations in offices, including handing washing with soap, running warm water, and disposable paper towels, as well as alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible. Ensure that equipment and tools are regularly cleaned and disinfected using registered disinfectants. Provide appropriate cleaning supplies. Rigorous cleaning and disinfection must occur at least after each shift, daily or more frequently as needed. Ensure distancing rules are adhered to in restrooms by reducing capacity where feasible. If shared building space has been used by a sick worker, shut down those shared space and disinfect. Prohibit the use of shared, coffee pots or other food and beverage amenities normally provided to residents/workers. Prohibit shared food and beverages and reserve adequate space for workers to observe social distancing while eating meals.
Communication	Affirm that you have read and understand the state industry guidelines, and that you will implement them. Post signage inside and outside of the office location to remind personnel and customers to adhere to proper hygiene, social distancing rules, and appropriate use of PPE and cleaning and disinfecting protocols. If an employee tests positive for COVID-19, the operator must immediately notify state and local health departments and cooperate with contract tracing efforts, including notification of potential contacts who has close contact with the worker, while maintaining confidentiality as required by State and Federal law. Conspicuously post complete safety plans on site. Post signage throughout the site to remind personnel to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfecting protocols. Establish a communication plan for employees, visitors, and customers with a consistent means to provide updated information. Maintain a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the work site or area.
Screening	Implement a mandatory health screening assessment (e.g. questionnaire, temperature check) for employees asking about (1) COVID-19 symptoms in past 14 days; (2) positive COVID-19 test in past 14 days; and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days. Responses must be reviewed and documented daily. Tenants are responsible for screening their own employees and visitors, but management and tenants should coordinate to facilitate screening.

Source: NYS Real Estate Reopening Guidelines