The Meter is Running
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Precautions and enforcement are required as amenities return.
AUTHORWilliam D. McCracken
As the COVID-19 pandemic enters its seventh month, many cooperatives and condominiums are struggling with the decision whether to reopen the recreational amenities in their buildings – gyms, rec rooms, pools and similar spaces – that were closed at the outset of the pandemic.
One of the first executive orders issued by Gov. Andrew M. Cuomo in the early stages of the pandemic directed the closure of those types of businesses, and they remained closed even after much of the rest of the economy in New York State slowly reopened. This has put enormous pressure on gym owners trying to stay in business.
The joint guidelines issued by the Real Estate Board of New York, the service employees’ union Local 32BJ and the Realty Advisory Board have also called for gyms to remain closed.
In the face of increasing pressure from commercial gym owners and patrons, including a class-action lawsuit filed by more than 1,500 gym owners, Cuomo announced that gyms would be allowed to reopen under certain conditions. On Aug. 18, the state Department of Health outlined those conditions, including a limit of 33% capacity, mandatory masks, sanitation and ventilation requirements, and having staff present to ensure compliance with the rules. The guidelines unambiguously apply to residential amenities as well.
The governor also announced that all gyms must be inspected by health authorities within 14 days of reopening. The directive allowing gyms to partly reopen took effect on Aug. 24, although localities were allowed to delay its implementation. Almost immediately after Cuomo’s announcement, Mayor Bill de Blasio issued a statement that gyms in New York City would remain closed for the time being.
Now that the authorities have provided clear guidance on how gyms may reopen, co-op and condo boards still need to decide whether it’s a good idea. Many co-op and condo residents are unhappy that their gyms, which they pay for, have not been available since March. Those residents reason that the virus infection rate in New York City has held at comparatively low rates in recent weeks, and health authorities now have a better understanding of how the virus is transmitted, particularly in poorly ventilated, crowded settings.
The steps needed to minimize those risks – wearing masks, social distancing, improved ventilation and sanitizing equipment before and after use – may arguably be more easily achieved in a residential space than in a large commercial gym. For example, co-op and condo buildings can limit gym use to one or two people at a time, which would probably not be economically viable for commercial gyms.
The precautions set forth in the Department of Health guidelines are an absolute minimum for any building considering reopening these spaces. Co-op and condo lawyers recommend that boards should consider additional measures, such as screening for virus symptoms if more than one resident is allowed in the space at a time, and requiring liability waivers for all users. Boards should also continue to closely monitor public health guidance, and they should consult with management and counsel before making any decisions about reopening amenities.
William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer.