Condominiums can no longer require residents to wear a mask

Condos can no longer require the use of a mask in common areas of buildings. Lawyers specialized in real estate and condominium law heard by the sheet say that, unlike companies, residential condominiums and buildings do not have the autonomy to maintain the requirement after a decree by Governor João Doria (PSDB) that exempts the use of protective equipment in closed environments in the state.

“In common areas, trustees cannot determine any type of restriction or obligation regarding the use of a mask. Everyone can freely remain without a mask in the gym, ballroom, elevators, halls, all common places”, says Marcio Rachkorsky , lawyer specializing in condominiums.

“What syndics can do is recommend the use of masks, but they cannot oblige. Not even by decision of the assembly, because this decision will contradict a legal determination of the state”, he adds.

According to Rodrigo Karpat, president of the Condominium Law Commission of the OAB-SP, despite not being able to require the use of the mask by its condominium members, condominiums will be able to require their employees.

“What can happen is that the condominium can impose for its employees, for its collaborators, the use of the mask as a condominium policy in a company and employer relationship. Within an institution, the employer can, for security reasons, demand this continuity as working material, but, for condominium owners, there is no legal obligation. The condominium and condominium relationship is different between condominium and its collaborators”, explains Karpat.

As for Sérgio Meira de Castro Neto, director of condominiums at Secovi-SP (Housing Union), it is possible to maintain the mandatory use of the mask inside the elevators.

“We have discussed the matter a lot and the conclusion we have reached is to maintain a parallel with what is happening on the streets. So, we understand that at this moment it would be possible to release everything inside the condominium, requiring a mask only in the elevators, this considering it as a means of transport. We see it that way, because elevators are very small, closed places, with low ventilation and great movement of people”, says Castro Neto.

As for a possible decision by the condominium assembly to maintain the obligation, both experts believe that the decision would only be effective if all residents agreed and fulfilled the determination voted on.

“It will be valid until the time when someone rebels against the decision of the assembly”, affirms Castro Neto.

“The condominium will be without coercive force to fine or reprimand this conduct. And, if he reprimands, it will be annulled in court because, as much as the assembly has decided, the law no longer makes this mandatory”, completes Karpat.

Mandatory in companies

Companies can continue to require their employees to wear a mask within workspaces. This is what the labor lawyers interviewed by the sheet.

According to them, as companies are responsible for ensuring the health and safety of their employees, they can adopt stricter protection rules, which include the mandatory use of masks.

“The employer has this autonomy, he can say ‘no matter what the federal government is saying, no matter what the state government is saying, it’s up to me to ensure the safety of everyone in the work environment’. The mask could even be considered as protective equipment, whether individual or even collective”, says lawyer Maurício de Lion, from Felsberg Advogados.

Thassya Prado, a lawyer specializing in labor law, says that continuing to require the use of a mask is a way for companies to protect themselves from lawsuits if employees are infected in the workplace.

“It’s a way for the company to be careful, it shows that it was careful with the employees. But the mask is framed as an PPE [equipamento de proteção individual]that is, the employer must provide it, advise on its use and monitor whether it is being used”, he says.

As it is considered an PPE, companies can even dismiss for just cause the employee who refuses to wear the mask.

According to the lawyer Mourival Ribeiro, the recommended thing is that companies evaluate maintaining the obligation according to the activity they carry out, the type of environment and the number of employees.

“If the company has large, well-ventilated environments and manages to maintain a distance between employees, I see no reason not to follow the flexibility. But, if the environment is closed and has many people, it would be more prudent to maintain the obligation.”

Santa Maria College, in the south of the capital, for example, decided that masks will no longer be mandatory for students, but must continue to be used by teachers and staff.