Many Associations have contacted us asking about what they should do in their communities to deal with the Covid-19 pandemic. While not everything is clear, and the landscape is ever evolving, here are some helpful suggestions. Of course, each Association’s situation may be different, and if your Association has any doubts, it should consult its attorney.
Associations operate residential communities and maintain property. Most of the time Board members, management and staff are not designed, trained or capable of guaranteeing physical health. If the Association creates the impression that they are responsible for the health of the owners, then the Board may be assuming a duty that is not within the Association’s scope of responsibility. Because this situation is so novel and difficult to navigate, the Association will likely make some mistakes and assume unnecessary liability that may not be covered under its insurance policies. Thus, at this time, the best recommendation is to emphasize to the owners that they must contact their individual health care provider if they have any questions or concerns over their own health, or their involvement in any community activity or use of common areas. The Association can certainly take precautions such as closing or limiting Association facilities, implementing additional cleaning protocols, making hand sanitizer available, and providing signs and instructions to wash hands. However, the owners should understand that the Association cannot serve as a health care provider or guarantor.
That being said, there are provisions in Chapter 718 and 720, Florida Statutes, regarding Emergency Powers. The statutes allow Associations to take certain actions in response to damage caused by an event for which a state of emergency is declared. The Governor has declared a state of emergency so that requirement of is fulfilled. Some attorneys argue that the coronavirus does not fulfill the “response to damage” requirement in asserting that there must be physical damage, such as after a hurricane. Many attorneys believe that there has been damage to health and economic damage, and that this type of damage fulfills the requirement of the statutes.
Under the Emergency Powers statutes, among other things, Boards can cancel and reschedule any association meeting, based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.
Please keep in mind, that at this time, the legal use of the Emergency Powers is uncertain.
Community Associations and their managing agents should also be aware of some possible legal obligations that may arise from the coronavirus (COVID-19). As with other general Association duties, Association board members and managing agents must act reasonable. The federal, state and local governments have recommended procedures to minimize health risks, to deal with those infected with the COVID-19 virus, and to be followed by those having come into close contact with infected individuals. Failure to follow these procedures could result in potential claims against an Association. The Center for Disease Control (the “CDC”) has stated that most people have a low risk of contracting the COVID-19 virus. However, according to the CDC the following individuals are at higher risk:
·Within a community where COVID-19 has been reported; ·Healthcare workers caring for patients with COVID-19; ·Close contacts of persons with COVID-19; and ·Travelers returning from areas where community spread is occurring. As stated above, the State of Florida has declared a state of emergency. Therefore, we believe that all Community Associations and managing agents are expected to take reasonable steps to lessen risks and potential claims. We recommend that the following steps be taken in most situations. I. Standard Protocols for keeping Associations, Staff and Residents Safe A. Association and Resident Safety ·Staff should keep all common areas, furniture and equipment sanitized with the use of an EPA approved disinfectant (must contain at least 70% alcohol). Common areas may include lobbies, elevators, mail rooms, playrooms, laundry rooms, bathrooms and gyms, and common furniture and equipment located therein. Door handles, light switches, elevator buttons, and other commonly touched areas should be disinfected regularly. ·Staff should ask all visitors, contractors, vendors and delivery persons who enter a lobby, clubhouse, etc., to wash or sanitize their hands. ·Provide hand sanitizer dispensers (must contain at least 60% alcohol) and disinfecting wipes for use by staff, residents and visitors in the lobby, service entrance and in areas where people congregate in the building. ·Ensure there is always soap and paper towels in bathrooms, that all sinks are in good repair and post reminder instructions for 20-second hand washing. ·Post flyers and information in readily accessible areas for all the residents and employees to see information on COVID-19. See links below. ·Encourage all persons showing symptoms of infection to seek medical care, follow their doctor’s orders, and report themselves to the CDC and local health department. ·Encourage all persons who have come in close contact with an infected person to self-quarantine in their home for at least 14 days. ·Encourage all persons to avoid crowded elevators, not congregate in common areas, to use tissues to contain coughs and sneezes and then to dispose of those tissues, to wash hands regularly and to keep a reasonable distance (at least six feet) from others. B. Staff Safety ·Staff should wear and use appropriate personal protective equipment, such as gloves, according to existing policies and procedures, as well as following label directions for cleaning products. ·Encourage staff if and when entering individual units or homes to inquire with residents if they are exhibiting symptoms of COVID-19 and if they have traveled to high-risk areas. If the resident answers yes to either of these questions, and the visit may be postponed, it is encouraged that the staff postpone the visit. If that is impossible, the resident should remain in a different room during the visit with the door closed, if possible, wear a face mask, and the employees should immediately wash their hands for at least 20 seconds with soap and water or use an approved alcohol-based hand sanitizer. ·Require staff to stay home if they are exhibiting symptoms of COVID-19. ·Implement a course of action for prompt identification and isolation of infected individuals. ·Ensure there are face masks (if possible), hand sanitizers, soap and sanitized towels readily available for all staff. ·Employers must comply with the Occupational Safety and Hazard guidelines (“OSHA”) and provide a place of employment free from recognized hazards which may cause death and harm. Please see link below. II. Procedures if you Suspect an Infected Individual in the Community ·Communities may temporarily suspend access to areas like gyms and conference rooms. ·Attempt to keep the names of suspected infected individuals confidential from other residents but inform all community staff that may come into contact with that individual. ·Direct the staff not to come into contact with the suspected infected or quarantined individual without following the above protocols, i.e. request the suspected individual to exit the room, wear protective face mask and properly sanitize after the visit. ·Report to the CDC and to the city, county or district health officer any suspected infected individual who is not remaining quarantined. III. Links for Further Guidance CDC – Coronavirus Summary CDC – Home Cleaning and Disinfection OSHA Guidelines for Employers
Please do not hesitate to contact Stoloff & Manoff if you have any questions.