Page 11 - NY Cooperator October 2020

COOPERATOR.COM THE COOPERATOR — OCTOBER 2020 11 Department of Health (DOH) guidelines— and while facilities may open for individual shall inspect either before or within two workouts, the State’s guidelines allow locali- ties to determine for themselves whether in- door group classes will be allowed to restart within their jurisdictions, or be postponed until a later date. At the time of this writing, ments across the country have undertaken Mayor de Blasio has maintained the ban on extraordinary measures to combat the indoor group classes in New York City. The Rules The salient guidance for gym and fitness the above-referenced safety guidelines must center reopening, whether public/commer- cial or private, such as might be found within people’s health in serious jeopardy, a coop- a co-op or condo building, includes: • Capacity: 33% occupancy limit • Access: Sign-in with contact informa- tion and health/temperature screening re- quired • Personal Protective Equipment (PPE): government mandates around the reopening Appropriate face coverings required at all of fitness facilities may expand this litigation times • Distancing: Users must maintain at least 6 feet of separation at all times • Hygiene/ Cleaning: Clean- ing and disin- fection supplies must be made available to us- ers; shared and/or rental equipment must be cleaned and/or disinfect- ed after every use; staff must also be available to clean and disinfect equipment in between uses • Group Classes: May be held by appoint- ment/reservation only; class capacity must rating or greater, or that shared water foun- be capped to maintain 6-foot social distanc- ing rules, but may in no case exceed 33% of would essentially relieve a plaintiff of the the typical class size (i.e., by leaving some burden of having to prove that the defen- stations, cycles, etc. vacant); classes should dant failed to act reasonably under the cir- be scheduled to allow additional time for cumstances. Critically, the court can adopt cleaning and disinfection between each ses- sion • Amenities: Shared water fountains may purpose of that law is: not be used; however, individual water bot- tle refill stations are permitted. Communal cludes the one whose interest is invaded, showers must remain closed, but individual and; to protect the particular interest which showers/stalls may remain open, but must is invaded, and; to protect that interest be cleaned between each use • Air Handling Systems: Gyms’ air filtra- tion systems should operate at MERV-13 rat- ing or greater (filters at this level remove at (See least 90% of particles in 3-10 µm range, 85% of particles in the 1-3 µm range, and 50% of gym in a co-op or condo building become particles in the 0.3-1 µm range); if they are infected with COVID-19 and subsequently unable to operate at that level, they must become seriously ill, those individuals may bring in a heating, ventilation, and air con- ditioning (HVAC) professional to verify and by the applicable rules and regulations for document their inability to do so, and adopt the reopening of fitness facilities to prove additional ventilation and mitigation pro- tocols endorsed by the American Society of association ignored a law that was specifical- Heating, Refrigerating and Air-Condition- ing Engineers (ASHRAE) and the Centers from COVID, and residents became ill with for Disease Control and Prevention (CDC) • Inspection: Local health departments weeks of the facility opening to ensure com- pliance Liability Analysis As we have seen, state and local govern- spread of COVID-19. Given the extremely high stakes, it should go without saying that be strictly adhered to; in addition to putting erative or condo association that fails to do so could also face substantial liability. Gen- erally, infection-based litigation is more of a concern for businesses operating in the healthcare sector, but these newly-adopted to the cooperative and condominium sector. In many states, violation of a law can constitute what is known as negligence per se. This means that the law—not a jury—sets the standard of care, and all a plaintiff has to do to es- tablish negligence is show that the defendant vio- lated the law. For example, that could mean dem- onstrating that the air handling system servicing the co-op or condo’s gym or fitness center isn’t operating at MERV-13 tains are still in use. Invariably, such failures a law—such as a social-distancing order, for example—as the standard of care where the ‘...to protect a class of persons which in- against the kind of harm which has resulted, and; to protect that interest against the par- ticular hazard from which the harm results.’ Restatement (Second) of Torts, § 286. ) For example, if individuals who use a be able to use the building’s failure to abide their case. In other words, if the building or ly meant to protect people using the facility “\\\[E\\\]ven though COVID infection rates have been substantially reduced since the beginning of the pandemic ... the crisis is still very much ongoing.” — Massimo F. D’Angelo WWW.SCHNEIDERBUCHEL.COM Full Service Law Firm for Cooperatives, Condominiums and Homeowner Associations LEGAL GUIDANCE — RESOURCEFUL SOLUTIONS New York Offi ce 462 Seventh Avenue, Suite 1600 New York, NY 10018 P: 212.485.9400 Garden City Offi ce 666 Old Country Road, Suite 412 Garden City, NY 11530 P: 516.393.5555 For more information, please contact: Marc H. Schneider, Esq. E-mail: mschneider@schneiderbuchel.com From our home to yours, wishing you all safety and health. Thank you for the opportunity to have assisted our community association friends as you have faced unprecedented challenges. continued on page 18