New York Empowers Businesses and Commercial Building Owners to Require Masks and Temperature Checks

As most New Yorkers know by now, as of April 17 2020[1], all persons over age 2 and able to medically tolerate a face-covering are required to wear a mask or cloth face-covering in public, including when taking public or private transportation or riding in for-hire vehicles.

As New York State begins reopening for business, Governor Cuomo gave businesses the right to protect themselves by enacting the following 2 New York State Executive Orders:

1. As of May 29, 2020[2] and continuing until at least June 27, 2020, business operators and building owners (and those authorized on their behalf such as property managers) are authorized to use their discretion to enforce compliance with the above directive requiring most persons to wear face coverings in public, including the right to deny entry to, or “require or compel” the removal of, persons who are not wearing a face covering in public.

2. From June 6, 2020[3] until at least July 6, 2020, commercial building owners, retail store owners and those authorized on their behalf to manage public places within their buildings and businesses, were given additional discretion to require individuals to have their temperature checked prior to be allowed admittance, and deny admittance to anyone who refuses to have their temperature checked or whose temperature is above 100.4

Importantly, the executive orders insulate businesses and commercial building owners who enforce mask-wearing and temperature checks from: 1) claims that they violated a tenant’s covenant of quiet enjoyment; and 2) claims of “frustration of purpose.”

The Frankfurt Kurnit Real Estate Group is monitoring federal, state and local developments that affect business operators and building owners. Please contact Lauren Erbst at (212) 705-4898 or if you have any questions about the New York Executive Orders discussed in this alert, or any other real estate questions.

[1] Governor Cuomo’s Executive Order 202.17 (April 15, 2020).

[2] Governor Cuomo’s Executive Order 202.34 (May 29, 2020).

[3] Governor Cuomo’s Executive Order 202.38 (June 6, 2020).

[4] The temperature currently proscribed by New York State Department of Health Guidelines.