Gov. Andrew M. Cuomo issued an executive order in June that protects a variety of buildings from legal liability if they refuse entry to people who fail a temperature check. But there was a glaring omission.
“Executive Order 202.38 says that, consistent with the Centers for Disease Control guidelines, commercial building owners, retail store owners and those authorized on their behalf to manage public places have the discretion to require people to undergo temperature checks,” says Marc Schneider, managing partner at the law firm Schneider Buchel.
More important, the order protects commercial building owners, retail store owners and the managers of those buildings from legal claims if they refuse admittance to anyone who flunks a temperature test or declines to have their temperature taken. And here, Schneider says, is the glaring omission: “The same protections were not given to co-ops and condos.”
What does that mean for co-op and condo boards that are trying to stop the spread of the pandemic?
“It means that you're governed by your own governing documents,” Schneider says. “Yes, you're exposed (to legal liability) in that the governor didn't give you the benefit of that absolute protection. (But) co-ops and condos have to come up with a Business Safety Plan, and they’re allowed to have reasonable rules.”
If a board requires temperature checks, there is potential for liability if someone manages to enter the building with a temperature over the established threshold. “You need to be careful,” Schneider says, because if you're going to require a temperature check in your rules, “you need to be able to provide that protection.”
Knowing all this, are most boards going to take the risk? The consensus seems to be no, but for a variety of reasons. Dawn Dickstein, the president of the MD Squared Property Group, says many of her co-op and condo clients don’t have doormen. “So we’re asking people to wear masks,” she says, “and we’re leaving it to the residents to self-monitor.”
Peter von Simson, the chief executive at New Bedford Management, says that his clients are not taking temperatures in the interest of keeping staff safe. “Right now, it seems the best way to protect everybody is to have as little interaction as possible,” he says. “Even with one of those remote temperature takers, you still have to get within a few feet of the person for it to work. I'm trying to discourage our staffs from being in close proximity to people as much as possible.”