My Building Is Offering Covid Tests, but Not for Young Children. Is That Legal?

Q: The president of my co-op board has offered free at-home Covid-19 antigen tests to all residents ages 5 and up. Each household received two tests per person, so a family with two adults and two teenagers received eight tests. But a family with two adults and two toddlers only received four tests because of the age restriction. This seems inequitable to me. Shouldn’t all households be treated fairly and receive the same number of tests per person, regardless of age?

A: Improving access to Covid-19 antigen tests in your building is a great idea. If the board is going so far as to provide tests, it should offer them to as many residents as possible, regardless of age.

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 have 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,” said Adam Ratner, M.D., 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.”

Regardless, your co-op board 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, according to Steven R. Wagner, a Manhattan real estate litigator at the Manhattan law firm Adam Leitman Bailey.

As a practical matter, your building’s distribution method doesn’t make the best use of the tests. “What if you have a teenage kid who’s away at college?” Mr. Wagner said, while in another apartment, “you have two toddlers who may have Covid and can’t get the test?”

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.

Write the board a letter explaining that its policy treats shareholders unequally and may also violate city and state laws. If the board doesn’t remedy the situation, file a complaint with the New York City Commission on Human Rights, which can investigate.

For weekly email updates on residential real estate news, sign up here. Follow us on Twitter: @nytrealestate.