Co-op and Condo Boards Can't Offer COVID-19 Tests Selectively

The president of a Manhattan co-op board has offered free at-home COVID-19 antigen tests to all residents ages 5 and up. This strikes some shareholders as inequitable. Shouldn’t all households be treated fairly and receive the same number of tests per person, regardless of age?

Yes, replies the Ask Real Estate column in The New York Times. If the board is going so far as to provide tests, it should offer them to as many residents as possible, regardless of age. Co-op and condo boards can’t cherry pick who gets a test. The board is required to treat all shareholders equally, and denying one group access to the tests probably violates New York State’s Business Corporation Law. The policy might also violate the city’s Human Rights Law, which prohibits age discrimination (among many other forms of discrimination), according to Steve Wagner, a litigator at the law firm Adam Leitman Bailey.

As a practical matter, the Manhattan co-op’s distribution method doesn’t make the best use of the tests. “What if you have a teenage kid who’s away at college?” Wagner asks, while in another apartment, “you have two toddlers who may have COVID and can’t get the test?”

Many, but not all, at-home COVID tests are authorized for use in children as young as 2, and are safe for those children to use. None of the tests has been authorized for infants. Testing an infant at home won’t harm the baby, but the result may not be accurate.

“It might be harder to get a good swab at home,” says Dr. Adam Ratner, director of the Division of pediatric infectious diseases at Hassenfeld Children’s Hospital at N.Y.U. Langone, who recommends testing infants in a professional setting. “The littler the nostril gets, the harder it is to do this.”

Rather than deliver sets of tests to each apartment, regardless of need, the board could make test kits available at the front desk and have residents pick them up as needed, with a household limit. This way, tests don’t go unused.

Shareholders who believe the board's policy is inequitable should write a letter to the board explaining that its policy treats shareholders unequally and may also violate city and state laws. If the board doesn’t remedy the situation, shareholders can file a complaint with the New York City Commission on Human Rights. That should get the attention of most board members, who are justifiably averse to running afoul of this powerful commission.