Additional Legal Issues During a Pandemic

Questions still abound as to how associations and their Boards of Directors should be responding to the issues raised by the COVID-19 pandemic. Below are a few more questions our firm has been fielding recently, and the advice that we are currently providing to our clients in dealing with them. It is important to note that this is the best advice we are able to provide as of the time that this article was written, but as we know things are changing at a rapid pace. Please check with one of our attorneys or your own independent legal counsel before implementing any new policies or procedures. As always, we applaud the dedication of the thousands of community managers, volunteer board members and their business partners who continue to serve the tens of thousands of common interest development communities throughout California.  Please do not hesitate to contact us if there is anything we can do to help make that job even just a little bit easier to manage.

We originally closed all of the common area amenities, but now that the weather is getting warm we would like to re-open the pool. Is that acceptable?

Boards should follow all Federal, State and local government requirements at a minimum, and can be even more restrictive if needed.  The problem with re-opening the pool area is that, while the chlorine in the water may kill the coronavirus, we still need to practice safe social distancing. Also, there are many other surfaces that the virus can survive on for several hours which people using the pool will come into contact with, not to mention the fact that the coronavirus can survive in the air for a short time as an aerosol. Therefore, we do not believe that pools should be re-opened quite yet, although indications are that those restrictions will likely be relaxed somewhat soon. With that said, it might be a good idea to show your homeowners and residents a light at the end of the tunnel to help alleviate their restlessness. Boards might consider posting notices which explain that, barring any unforeseen circumstances, the Board intends to open pool area on a specific date, such as June 1st.  This will give residents an end date to anticipate and look forward to, though recognizing that it could still be changed if circumstances require.

Our residents are not taking these social distancing and mask wearing requirements seriously. Should we be noticing hearings and levying fines for these violations?

Boards should avoid taking on the role of enforcement for governmentally imposed restrictions. Remember that an association can only enforce what is in its governing documents, and if a rule is put in place then the Board has a duty to enforce it.  This leads us to the golden rule of rulemaking – “Do not make rules you cannot enforce”. So, while an emergency rule closing the gym, clubhouse, pool, and other common areas would be a good idea and are easily enforced, a rule requiring masks and social distancing is much more problematic and potentially unenforceable. Those issues should instead be enforced by the police or other governmental entities that promulgated the restrictions, not by the association. If residents are not following proper social distancing regulations, then those issues can be reported to the proper governmental authorities.

We found out recently that a member of our community tested positive for COVID-19. What should we do now?

An association has a few options once it has been made aware that one of its residents has tested positive for COVID-19. It can either: (1) disclose to the membership that a specific person has tested positive; (2) disclose to the membership in general terms that someone has tested positive and maintain confidentiality of that person’s identity; or (3) not disclose anything at all.

Although HIPAA rules do not apply to a homeowner association, option (1) above is not recommended absent direct authorization from the person in question allowing the Board to share that information. The Board should do what it can to protect the confidentiality of that information unless it is expressly authorized to share it. Otherwise, it runs the risk of creating an uncomfortable situation in which the injured person could seek to hold the association liable for any perceived damages suffered as a result of its disclosure.

As between options (2) and (3) above, either choice is likely acceptable. However, the argument can be raised by homeowners that the Board should have taken some action once it was made aware of the fact that the virus was present in the community, and that option (3) was not in the best interest of the community as a whole. Therefore, a middle-of-the-road approach as in option (2) above might make the most sense as it cuts off that line of argument while still protecting the identity of the infected person. Essentially, we are balancing the risk of a negligence lawsuit for failing to disclose anything at all against the risk of a lawsuit from the infected person or their family for disclosing too much potentially confidential information. Although either lawsuit would probably lack merit, posting a generalized warning serves both interests.

With that said, it is incumbent on each person to maintain proper social distancing and self-quarantine to ensure their own protection from this virus. We should all be acting as if every person we come into contact with is a potential carrier, and we should be avoiding direct and indirect contact with others as much as possible.