March 21, 2020 |
Updated April 8, 2020
As you may have seen on Thursday, March 19, California Gov. Gavin Newsom signed Executive Order N-33-20 mandating all individuals living in the State of California to stay home or at their place of residence to protect public health, exempting certain essential services. This is one example of a policy that could be adopted in other states as well.
The California State Public Health Officer and Director of the California Department of Public Health subsequently clarified that all individuals living in the State of California are to stay home or at their place of residence, except as needed to maintain continuity of operation of the federal critical infrastructure sectors, critical government services, schools, childcare and construction, including housing construction.
The reference to “critical infrastructure sectors” by California officials refers to the U.S. Department of Homeland Security, Cybersecurity and Infrastructure Security Agency’s (CISA) Guidance on the Essential Critical Infrastructure Workforce (Guidance). The Guidance was issued intending “to support State, Local and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and need to be able to operate resiliently during the COVID-19 pandemic response.”
Per CISA, “Real Estate” (e.g., office and apartment buildings, condominiums, mixed use facilities, self-storage) is a subsector of the “Commercial Facilities Sector” and therefore exempt under the California Governor’s order as an essential critical infrastructure sector. Thus, rental industry professionals are permitted and have a “special duty” to maintain continuity of operations. However, keep in mind the CISA guidance is not a federally mandated standard and, therefore, other state and local governments may decide differently if they enact their own orders.
Regardless of whether you operate in California, we are writing to encourage you to develop a written statement that outlines your company's business operations that are "essential" and must continue to be performed in person, should your state or local government issue a similar mandate in light of COVID-19. If a state or local mandate is issued, keep in mind the specific parameters as identified in the order and adjust your operations accordingly.
We encourage our state and local apartment association partners to work with public officials to ensure that property management and construction of housing are explicitly exempt from any "shelter in place" requirements to ensure the viability of our industry.
For industry professionals, how do I know if what I do is an essential service? The most logical and sound argument for “essential” status is the work of maintenance personnel to maintain healthy living standards in apartment communities, especially as it relates to habitability concerns under landlord and tenant law. For example, if a water or sewage problem were allowed to persist, there would be health risks to the entire population of residents beyond COVID-19.
In a recently published article in the National Law Review, Squire Patton Boggs advises companies:
Again, remember every jurisdiction is different. We advise you to pay close attention to the definition of essential services as you craft your policies and procedures during this unprecedented time.
For example, New York Governor Cuomo signed Executive Order 202.7, which mandates, effective March 21, 2020 at 8 p.m. and until further notice, all businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 75 percent no later than March 21 at 8 p.m.
By the New York state standard, any essential business or entity providing essential services or functions shall not be subject to the in-person restrictions, including vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses.
Additionally, if you fall under a “Shelter in Place” order, we advise you take the following precautions:
- Limit onsite employees, maintain limited staff to ensure continuity of basic operations (service request management, rent collection and payroll, etc.).
- Where possible, limit in-person transactions between staff and residents. Consider implementing digital payment and maintenance requests or offer secure drop boxes. Note: Please review applicable state laws, which may prohibit landlords from mandating that residents pay rent online.
- Suspend all non-essential maintenance and repairs. Service requests should be categorized between essential (HVAC, hot water, plumbing, etc.) and non-urgent (upgrades, cosmetic repairs, etc.).
- Share staffing updates with residents and ensure emergency contact information is available. When possible, use multiple communication platforms such as email, community bulletin boards and notices to individual units.
- Contact vendors to determine availability for emergency maintenance needs. Ensure alternative arrangements are available.
- Continue move-out walk-through inspections when requested by residents, per legal requirements. However, follow appropriate social distancing protocols. Ensure the residents desire inspections in the current environment and, if the request is withdrawn, get it in writing.
- Consider providing virtual and low-contact showings to prospective residents. These could include virtual tours or allowing a prospect to enter and tour a unit on their own. Be sure to disinfect high-touch surfaces between showings (including door knobs, light switches, etc.).
For more information about COVID-19 related policy concerns, please visit the new Policy Issue Page. It contains statutory research and advocacy resources for government affairs professionals. Visit NAA’s Guidance for Dealing with the Coronavirus for industry best practices and a wealth of information for industry professionals as you work to operate your business and navigate this new landscape. New resources are updates daily and often.