Editor's note: This article is Part 2 of a two-part series from the authors examining some of the many legal questions and considerations raised by the global pandemic for co-op, condo, and HOA boards, as well as landlords and building owners. Click here to read Part 1: https://cooperator.com/article/residential-building-laws-the-covid-19-pandemic
Among the many complex questions raised by the ongoing coronavirus pandemic are those that lie at the intersection of personal privacy rights and the right of individuals to information they can use to protect their health and that of their families. With accurate information and clear, consistent communication so crucial in the fight against COVID-19, multifamily boards and managers are faced with a legal dilemma: risk claims of privacy violation by disclosing information about individual residents’ health, or risk claims of negligence for not informing their constituents of infections within their building or HOA. With residents understandably concerned about both their privacy and their safety, the pressure on boards and managers is acute. Given the stakes, it’s important to understand both the extent and limitations of what boards can mandate in their communities, and make decisions based on the law, rather than misinformation or personal preference.
Legal Facts & Board Obligations
While much of the guidance around staying home, social distancing, and wearing masks has been presented in the form of ‘recommendations’ or ‘strongly suggested,’ the fact is that occupants of New York City buildings who are infected with the coronavirus and who do not self-quarantine under the existing social distancing rules and guidelines may be subject to mandatory quarantine under NYC Administrative Code §17-104, which spells out measures to prevent the spread of disease.
According to NYC Administrative Code, §17-106, If a person who is “apparently or presumably sick of any communicable disease,” but refuses to self-quarantine is reported to the New York City Department of Health, that person is subject to inspection by “any officer or employee of the department,” and could then potentially be subject to detention in a public hospital. (See City of New York v. Mary Doe, 205 AD2d 469, 614 NYS2d 8 [1st Dept. 1994], which held that a patient’s multidrug resistant tuberculosis could not be treated and public health protected by less restrictive means.)
Buildings should report all known residents who are “apparently or presumably” infected with COVID-19 but who fail to self-quarantine either to the Department of Health -- by calling 311 -- or report to their local police precinct. In such cases, landlords or boards who either negligently or intentionally fail to make the required report could not only be subject to penalties for violating the New York City health code, but could also be subject to possible damage claims by other persons within the building who become infected as a result.