DC Mayor Imposes Masking Order, Includes Condo Common Areas [July 22]

To fight the spread of the COVID-19 virus, D.C. Mayor Bowser issued two new orders on July 22:  Order 2020-079 extending the public health emergency to October 9, 2020; and Order 2020-080 expressly requiring DC residents to wear masks in both indoor and outdoor circumstances, including while in transit. This Order expressly requires that people wear masks in the indoor common areas of apartments, condominiums and cooperatives, subject to certain exceptions.

The Order also provides that businesses, office buildings, and other establishments open to members of the public shall post signage on their exterior doors stating that a person may not enter unless the person is wearing a mask.  The business, office building, or other establishment shall exclude or attempt to eject persons who are not wearing masks or who remove their masks.

Who must wear masks inside our condominium or cooperative building?

All people (including residents, guests, contractors) are required to wear a mask whenever they are indoors on condominium common areas, including hallways, corridors, lobbies, club rooms, elevators and similar areas.  In sum, residents are required to wear masks whenever they are outside their unit and on indoor common areas.   Residents and their guests are not required to wear a mask inside their unit.

Who must wear masks while outdoors?

Residents must wear masks when leaving their residences and traveling outside the building, if they are likely to come within six feet of another person for more than a fleeting time.  Persons who are passengers in a taxi (or a vehicle that is part of a Transportation Network Company), or who are a passenger on any form of public transit in the District must wear a mask at all such times.

What are the exceptions that allow residents not to wear masks?

The Order provides certain limited exceptions to the masking requirement, such as when people are:

1.  In their unit or are a guest in another’s unit;
2.  Actually eating, drinking or legally smoking;
3.  Engaged in vigorous outdoor exercise and remain six feet or more from other people;
4.  In the water at a swimming pool;
5.  In an enclosed office that no one else is permitted to enter;
6.  Aged two years old or younger;
7.  Unable to wear a mask due to a medical condition or disability, or physically unable to remove a mask

Must associations prohibit visitors without masks from entering the condominium building?

Yes, with some exceptions.  Under Order 2020-66 (effective May 16 to October 9, but subject to change), “Essential Businesses” operating in DC, including residential living facilities, must exclude customers and visitors who are not wearing a mask or face covering, except for:

1. Children under the age of nine (9) years old;
2. Individuals experiencing homelessness;
3. Individuals who cannot wear masks or face coverings due to a medical condition or disability, or who are unable to remove a mask without assistance; and
4. When excluding them from entering would violate a federal or District law (such as the Americans with Disabilities Act).

How does a condominium association enforce the Mayor’s masking mandate?

The Mayor’s Order does not provide an express mechanism for a condominium association to enforce the mask requirement.  One option is to report non-compliant residents to the Health Department, as with other violations of the Mayor’s COVID orders.

However, most condominium governing documents expressly provide that residents may not carry out “illegal” or “unlawful” activity on condominium property.  Given that the Mayor’s Orders have the effect of law, a resident not wearing a mask while on indoor common elements may be violating the governing documents — and is therefore subject to the association’s usual rules enforcement procedure (such as imposing fines).

Alternatively, if the bylaws do not clearly ban all “illegal activity” in the condominium, an association board may choose to formally adopt and incorporate the Mayor’s Order as a condominium rule — and violators would be subject to the association’s usual rules enforcement procedures, potentially including the assessment of fines or rules violation charges.

 

Federal, state and local responses to COVID-19 are changing quickly. We encourage associations to monitor relevant government websites and this page for further updates.

 

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.