Bill Morris in Building Operations on June 5, 2020
The confusing signals keep coming. The latest confusion surrounds the Business Safety Plan, a document businesses must prepare as the state moves through its phased reopening, outlining steps the business will take to prevent the spread of COVID-19. Some attorneys are advising co-op and condo boards that they're obligated to formulate plans. Others aren’t so sure, arguing that co-ops and condos, strictly speaking, never closed and, furthermore, they’re not commercial enterprises.
The Empire State Development Corp. (ESD), the state’s umbrella economic development arm, has tried to clarify what is required during the reopening. “(Co-ops and condos) do not need a reopening plan because they’re not a business,” Annmarie Proscia of the ESD wrote in an email to the law firm Schneider Buchel. “If they’re looking at opening amenities, (those boards) need to follow the recreation guidance on our website.” That guidance is available here.
“Putting a Business Safety Plan together would have been a tremendous amount of work for co-op and condos boards,” says Marc Schneider, managing partner at Schneider Buchel. “And it didn’t make any sense. First of all, co-ops and condos never closed. So we wrote to Empire State Development for clarification.”
The New York State Department of Health's website offers a template for preparing a Business Safety Plan. The site notes that "each business or entity, including those that have been designated as essential," must prepare a plan. "This plan does not need to be submitted to a state agency for approval," the website states, "but must be retained on the premises of the business and must made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection."
Zachary Steinberg, vice president of policy at the Real Estate Board of New York, has sent the following guidance to property managers: "Co-ops and condos are required to have Business Safety Plans and affirm that they will follow the state’s guidance.
Amid the confusion, Schneider advises boards that even if they're exempt from preparing a Business Safety Plan, they don't have a license to relax. “We recommend that boards develop their own plan or house rules that address the activities that will occur in reopening,” he says. “For instance, if you’re going to start permitting move-ins and move-outs, you should have a set of protocols. You might want to limit the hours or days when moves are allowed so it’s possible to clean up after the move. You might want to limit the size of moving crews. You’ve got to make rules on how many people can be in the gym at one time, and how it will be cleaned after each use.”
Phase One of New York City’s reopening began on Monday, June 8. Nonessential stores were allowed to open for curbside pickup, and nonessential construction and manufacturing ccould resume. The order has major implications for co-op and condo boards, many of which had to shut down facade and roof projects, lobby renovations and apartment alterations under the ban on nonessential construction.
Real estate activities will be included in Phase Two of the reopening, which means, based on current projections, that co-ops and condos will be able to fully reopen amenities such as pools, gyms and roof decks by late June – provided, of course, that boards have put appropriate safety measures in place and the city is not hit with a second wave of COVID-19 cases.
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