COVID-19 and Associations: FAQs

Legal Disclaimer: This information is not intended to be legal advice. Legal advice must be tailored to the specific facts and circumstances of each case and each association’s governing documents. Also, it is not intended to be a full and exhaustive explanation of all legal considerations, nor should it be used to replace the individualized advice of your legal counsel.

Version: 3/22/2020

FAQs:

COVID-19 in Common Interest Communities

The COVID-19 pandemic has posed new and difficult questions and decisions for associations and their managers.  We have assembled some commonly asked questions into this FAQ format to provide some quickly accessible information in the midst of this rapidly-evolving crisis.

Please note that while these questions are fairly general, we recognize that circumstances are a bit different in any community.  If you manage a high-rise community, the core issues can be very distinctive from those in an HOA with few amenities or a 55+ community composed mostly of seniors.  High-rises, in particular, probably face the most difficult circumstances in light of the occupancy density, the different types of facilities and varying demographics.  A customized strategy is often required.  The lawyers of CWMEB are here to assist, if you need us, to address issues ranging from quarantined residents to virtual meetings.

We find ourselves in wildly changing times.  While we have assembled these questions and answers based on issues that have arisen thus far, new issues arise on an ongoing basis.  We all need to stay informed and flexible as this substantial health crisis unfolds.

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1. Must the association affirmatively prevent the COVID-19 virus from infecting the residents of the community?

A: No. This is not realistic, much less a legal obligation.  Just as with the spread of other viruses (such as the common cold, the flu or other strains of the coronavirus), the association cannot guarantee the buildings or common areas are free from disease.

2. What is the Board’s duty to act to reduce contamination in the community?

 A: While associations have a general duty to keep common areas safely maintained, a pandemic emergency of this type is different than more typical common area safety issues.  In short, there is no action an association can take to guarantee that the common area is totally clear of the virus, especially as residents come and go on an ongoing basis.  What the Board can do is utilize expertise of the CDC and other government authorities to implement recommended strategies to minimize the spread of the disease and have as safe an environment as reasonably possible. We see associations taking the following steps:

• Closing various amenities, including gyms, clubhouses, community rooms and similar areas.
• Requiring residents and guests to “stand back” a respectful distance from staff and concierges.
• Limiting in-person access to site staff and other association personnel
• Limiting repair work to “essential only,” in order to minimize contractor traffic, as well as entry by other service providers;
• Enhanced cleaning of surfaces (from elevator buttons to handrails), multiple times per day.
• Placement of hand sanitizer and wipes throughout the buildings and other Association facilities, to the extent supplies are available.
• Encouraging residents to limit guests as much as possible, particularly those with symptoms.
• Asking that residents disclose if they are in quarantine or test positive, so that the association can consider whether additional mitigation measures need to be implemented to ensure a successful quarantine.

3.  Can a Board close or suspend access to portions of the common elements or amenities?

A: Most association documents provide clear authority for boards to operate and manage the common area amenities.  While some associations are allowing certain facilities to remain open with enhanced cleaning, many associations have elected to close certain common areas (or at least significantly limit the number of occupants) to reduce the risk of spreading disease.  This will be an individualized decision based on the facilities, the residents and other factors, including the governing documents.

4. Can an Association require residents to disclose whether they have positively tested for COVID-19 or if they have symptoms that suggest it is possible?

 A:  No, the Association may not require such disclosure.  However, the Association may ask residents to voluntarily disclose.

 5. What can or should a Board do if it receives information from a resident that he has or may have the virus?

A: The answer to this question has been debated by associations nationwide.  We suggest a process where the resident is asked the following questions:

• Are you going to self-quarantine? If so, for how long?
• Will you consent to the Association disclosing your identity and/or address, so that other residents are aware of your situation?
• Is there something the Association can do to assist in ensuring that you succeed in your self-quarantine?
• Have you recently used any association equipment or amenities or had close contact with any particular staff? If so, what equipment and which staff?

If the association learns there is a confirmed case of COVID-19 in the association, we suggest that this basic information be shared with the community, so residents are aware that a case exists.  If the infected resident has expressly consented to the Association disclosing their identity/address, the identity/unit may be disclosed to the community, so that all residents can act accordingly and minimize their risk of exposure.  In fact, if the resident authorizes disclosure of his identity or unit, then alerting the building could “take the pressure off” the infected resident, so other residents do not approach them or their home.  Of course, it is always a hope that neighbors will “rally” to help an infected neighbor, if they can provide assistance without risk to themselves.

Please note that we do not recommend disclosing an infected resident’s identity or unit without their consent, as it could create a disincentive for residents to self-report their situations and create other potential negative consequences.  On balance, it is very useful for all residents and staff to know, at a minimum, that there is a confirmed COVID-19 case (or a resident awaiting test results) in the association.

 6.  What if association staff reports symptoms?

 A:  Many associations are employers or have a role in working with management company staff on site.  Site staff should be encouraged to report to management or the Association if they start experiencing symptoms of the virus, so CDC-recommended measures can be implemented to minimize the risk of infecting others. The Association should determine if the staff member has recently interacted with any particular resident, so those residents may be alerted as well.

7. Can an Association require an infected resident to leave the building or community?

 A: No.  Most residents, if quarantined, are restricted to their homes.  A condominium building is their home.  As such, the Association should do the best it can to minimize the effect on the common areas and help promote a successful self-quarantine.  The Association certainly may ask the quarantined individual to do their part and wipe down any surfaces they have touched or contacted. If an infected resident is behaving recklessly, we suggest notifying the health department.

8. Should associations carry out enhanced cleaning of the common areas?

A:  Probably so.  The CDC has indicated that the virus is vulnerable to wipe-downs and cleaning solutions, so enhanced cleaning protocols can only help.  However, the Association should not represent that the common areas are “virus free,” particularly as residents and guests will surely traverse the areas in an ongoing way. There is no way to guarantee complete sanitization.

9. What if an infected resident needs an “in-unit” service?

A: This is a difficult question to answer.  We suggest that any non-essential service be postponed until “the coast is clear” per CDC guidelines.  If the service is truly essential (a plumbing backup), there are protocols that can be undertaken by qualified contractors, but securing them may be difficult given the national emergency.  This must be reviewed on a “case by case” basis.

10. Can we expect this pandemic crisis to affect the association’s ability to collect assessments?

A: Yes.  Just as the economic crisis in 2008, this pandemic is already resulting in difficult financial situations for citizens throughout the country.  If the crisis is only a few months, the Association would likely be well-served by being flexible with owners, such as waiving late fees or granting payment plans more liberally.   If the crisis drags out further, however, other alternate strategies might be considered, including budgeting a larger amount for bad debt.  Another “wild card” is whether government stimulus might be available to associations or members during this difficult time – and that has yet to play out definitively.

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These Q&As may be updated periodically as new “commonly-asked questions” emerge in the wake of this pandemic.  Please know that the lawyers in our industry are facing many questions of first impression – so we are all navigating uncharted waters together. 

 

Chadwick Washington Moriarty Elmore & Bunn, PC was founded in 1990 and brings many years of experience to bear on these questions.  While many of us are working remotely, we remain available to help address these matters for our clients.  Like the rest of the country, we hope this all ends soon and with minimal harm to our common interest communities.

[1] Centers for Disease Control & Prevention (https://www.cdc.gov/coronavirus/2019-nCoV/index.html)