Q. A few days ago my 80-year-old uncle, who resides at a co-op in Queens, called me to tell me that his co-op board has informed the shareholders that a $1,000 fine will be issued to anyone not wearing a mask or facial covering during the current pandemic. The board stated that it is necessary in order to protect the super, janitors, doorman, and other staff of the building. I responded that I don’t think the board can legally impose a fine. Can you please help with this matter?
A. “The board’s ability to impose a fine depends upon whether authorization to do so exists in the proprietary lease or the bylaws,” says Phyllis Weisberg, partner in the New York office of law firm Armstrong Teasdale. “But the inquiry should not end there, since the board may well have other enforcement mechanisms. Every shareholder has an obligation to comply with the law, and that obligation is typically set forth expressly in the proprietary lease. An Executive Order is part of the law. In an Executive Order issued on April 15, 2020, Governor Cuomo required everyone over the age of two who is medically able to tolerate a face covering to wear one at all times when he or she is in a public place and unable to social distance—that is, unable to maintain a six-foot distance from others. Most if not all cooperative and condominium boards have moved to require a face covering in all common areas of their buildings. Accordingly, unless the individual cannot medically tolerate a face covering, the failure to wear one would be a violation of law, and, therefore, a breach of the proprietary lease. As such it would entitle the board to pursue its remedies.
“In addition, every employer, including a cooperative apartment corporation, has an obligation under law, including the federal Occupational Safety and Health Act (OSHA), to provide a safe place for its employees to work. Since face coverings are now deemed essential to protect others, then wearing face coverings is important to maintaining a safe place to work. The failure to enforce a requirement of face coverings could subject a cooperative to fines from OSHA; it could also result in employees refusing to come to work.”