Q: Who may be deemed ‘essential employees’ for buildings during the quarantine/lockdown to maintain resident services?
A: According to David L. Berkey of New York City-based firm Gallet Dreyer & Berkey LLP, “New York State’s guide for their employees during COVID-19 containment efforts states that essential employees shall include ‘Maintenance, Safety & Security, Fire Safety, Capital Services, Emergency Management, Food Service Workers, Housekeeping staff, Cooks and Cleaning Staff.’ We can argue that the same rules should apply for building employees. (See this article for more information on what are as of this writing considered essential business/employees: https://cooperator.com/article/what-isan-essential-business-Ed.) The Center for Disease Control (CDC) defines essential business functions,
jobs, or roles as those that are required to maintain business operations. Similarly, The New York State Department of Health advises that essential employees are those whom the building deems essential for the performance of services in that individual building. Therefore, doormen, porters and supers may be ‘essential employees.’ Case law regarding the warranty of habitability also states that maintenance and janitorial persons perform essential functions for the building. Park W. Mgmt. Corp. v. Mitchell, 47 N.Y.2d 316, 329, 391 N.E.2d 1288, 1295 (1979).
“For all of the above reasons, we believe that maintenance, security and cleanliness are considered essential functions to be coordinated for the health and safety of a building and its residents, and those performing these functions would be considered ‘essential employees.’
Q: What should a landlord, board, or manager do if a member of their building staff tests positive for COVID-19?