My building offers Covid testing, but not for young children. Is it legal?

Q: The chairman of my co-op’s board has offered free in-home Covid-19 antigen testing to all residents aged 5 and over. 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 due to the age limit. It seems unfair to me. Shouldn’t all households be treated equally and receive the same number of tests per person, regardless of age?

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

Many, but not all, Covid home tests are licensed for children as young as 2 years old and are safe to use by such children. None of the tests have been authorized for infants. Testing a baby at home won’t hurt, but the result may not be accurate.

“It might be harder to get a good swab at home,” said Adam Ratner, MD, director of the division of pediatric infectious diseases at NYU Langone’s Hassenfeld Children’s Hospital, who recommends testing infants in a professional setting. “The smaller the nostril gets, the harder it is to do that.”

Either way, your co-op board can’t choose who takes a test. The board is required to treat all shareholders equally, and denying any group access to testing likely violates New York state corporation law. The policy could also violate the city’s human rights law, which prohibits discrimination based on age, according to Steven R. Wagner, a Manhattan real estate litigator at the Manhattan law firm Adam. Leitman Bailey.

In practice, the distribution mode of your building does not make the best use of the tests. “What if you have a teenager who is in college?” Mr Wagner said, while in another apartment, ‘you have two toddlers who may have Covid and cannot take the test?’

Rather than supplying test sets to each flat regardless of need, the council could make test kits available at reception and ask residents to collect them as needed, with a housekeeping limit. In this way, the tests do not remain unused.

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

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