Caution Required if Co-op and Condo Boards Enlist Volunteers

In many cooperatives and condominiums, residents want to step up and offer volunteer assistance to management during the coronavirus pandemic, both in helping vulnerable members of the community and in assisting with ordinary day-to-day tasks, which management may be unable to perform due to staffing issues. As has been the case during staffing shortages due to union strikes in the past, many buildings are happy to accept all the help they can get. However, there are some key issues co-op and condo boards must bear in mind before bringing in volunteers, both generally and specifically in the midst of a pandemic.

Every co-op and condo board should immediately familiarize itself with the insurance coverage it carries, including any exclusions, limitations of coverage, and deductibles. Volunteers, like anyone else, can be hurt while carrying out their activities and cause property damage, injuries, or even death. Boards cannot assume that such risks are covered under their general liability policy, their directors and officers (D&O) liability policy, their workers’ compensation policy, or other coverage. Even if a risk is covered, there may be important limitations on coverage or requirements to ensure a volunteer is covered (such as the need to designate the volunteers as members of a committee). It is also important to fully understand the coverage they have, so they can keep proper records of losses and be prepared to pursue coverage. Furthermore, many experts recommend that all insurance carriers be notified now of coronavirus-related losses, even if the exact nature and extent of the losses are not yet known.

Volunteers must be fully informed of the fact that increased contact with people, common areas and materials (including groceries, garbage, supplies, etc.) increases their risk of contracting coronavirus, which, of course, could result in serious illness or death. They should be fully and specifically instructed on social distancing and other procedures to reduce their risk of contracting or spreading the virus. Specific written instructions should be given with respect to each type of activity a volunteer may wish to perform. Boards should require that volunteers provide an electronic acknowledgment of having received such information and instructions, and should consider having volunteers provide a release of liability to protect the cooperative or condominium.

Volunteers should be appropriately screened and should be matched to duties that they are suited to perform. While circumstances may not allow for a full background check, a known bad actor should not be accepted as a volunteer. Volunteers should, in all events, understand that they are not employees of the cooperative, the condominium or the managing agent.

In our view, Gov. Andrew Cuomo’s recent Executive Order 202.8, mandating the temporary suspension of the entire non-essential in-person workforce in New York, does not apply to either residential building service workers (such as superintendents, porters, handymen, etc., who are employed by the building), or to managing agents. However, just because such individuals provide essential services does not prevent them from falling ill, and, in any event, social distancing and other sanitary best practices may place meaningful limitations on their ability to carry out both their normal and coronavirus-related duties. Therefore, buildings need to consider how they will operate in the event normal management and staffing are not feasible. If volunteers are part of the contingency plan, proceed with caution.

Erica Buckley is a partner and Ruben Ravago is counsel at Nixon Peabody, where they are members of the law firm’s Co-op and Condo Group.