Many landlords of commercial and residential buildings in New York City have been looking into possible ways to address the health and safety of individuals at their premises. Although New York courts have not yet weighed in on what steps, if any, a landlord should take with respect to mitigating COVID-19 infections, New York City's Department of Health, in addition to the New York State Department of Health and the US Centers for Disease Control and Prevention (CDC), have issued guidance that both residential and commercial landlords should consider.1
In guidance published on the New York City Health Department's website relating specifically to COVID-19,2 New York City recommends that residential and commercial landlords ensure that the premises are cleaned often, especially common areas such as door handles, hand rails, and elevator buttons. The City also recommends that employees at the premises have access to handwashing facilities, and that landlords make hand sanitizer available in common areas of buildings.
The City further advises landlords to take steps to encourage social/physical distancing in their buildings, especially in elevators and other small spaces whenever possible. Among other things, the City recommends that landlords post flyers in common areas discussing social distancing and listing other methods for limiting the spread of COVID-19. The City further suggests that building staff wear face masks, particularly if individuals cannot remain six feet away from each other.3
The City also recommends that landlords close some common areas, or limit access to them, particularly playrooms, game rooms, and lounges. However, the published guidance suggests that pools and hot tubs may remain open, subject to social distancing, frequent cleaning, and similar COVID-19-related practices. The same is true for deliveries made at the building: deliveries can continue, but building staff, tenants, and delivery personnel should all practice social distancing. Similarly, the guidance states that buildings should continue to carry out repairs as needed, but both the repair personnel and building tenants should practice social distancing and wear face coverings during the repair, followed by sanitizing the area where the repair took place.4
According to the City's recommendations, landlords or other building employees do not have to notify the City “or others in a building” if someone in the building develops COVID-19.5 However, courts could reach a different result as to whether disclosure is required in certain situations, including because there is some older case law indicating that disclosure may be appropriate under some circumstances.6 Landlords who decide to disclose such information should be careful to comply with all applicable privacy laws.
The City does not recommend that landlords take any steps to change the humidity or temperature in their buildings. Nor does the City recommend any sort of special ventilation in buildings.7
It is too early to know whether New York courts will hold that landlords who follow some or all of this guidance can limit or avoid liability arising from COVID-19-related infections at a property. In the meantime, the City has provided some guidance for landlords in New York City, although landlords should also keep existing, pre-pandemic case law in mind. Landlords should review the City's guidance carefully and consider whether to implement those recommendations at their properties.
3. In addition to the guidance issued by the City, described above and as set forth in footnote 2 above, on April 15, 2020, New York Governor Andrew Cuomo issued an Executive Order requiring individuals in New York to wear face coverings when they are a "public place" and unable to maintain a distance of at least six feet from others. https://www.governor.ny.gov/news/no-20217-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. Although "public place" is not defined in the Order, landlords should consider whether common areas of their buildings could be considered a "public space," e.g., if those areas are open to the general public.
4. See footnote 2 above. The City has also released separate guidance on promoting social distancing in residential buildings. https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid-19-physical-distancing-residential-settings.pdf.
5. See footnote 2 above.
6. E.g., 60 N.Y. 229 (1864) (landlord liable for injuries to tenant where landlord knew that property might be infected with smallpox, but did not disclose that fact to tenant).
7. See footnote 2 above.
Originally published 23 April, 2020
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