05/15/2020

Client Alert

Written by: Michael S. Karpoff

We are all looking forward to the end of the COVID-19 pandemic and the return to normalcy. It is likely that will be a gradual effort, with more people going back to work and facilities beginning to open even while the disease is still active in our communities. Some states already are planning or beginning to reopen in phases. In fact, we believe that Governor Murphy will issue an order early next week permitting pools and tennis courts to reopen. Once State and Local regulations permit reopening, whether to open association common areas such as clubhouses, gyms, pools and tennis courts will be up to the governing board. We urge boards to keep apprised of State and Local requirements and follow Centers for Disease Control and Prevention (CDC) and Community Associations Institute (CAI) Internet postings in determining when to resume such operations, the extent to which facilities should be reopened to members, and the precautions that the association will need to implement.

CDC’s general website regarding COVID-19 may be found by clicking here. CAI’s website regarding the virus can be found here.

Continue Safety Precautions

If a board decides to reopen its facilities before the disease is declared to have been eradicated, we recommend that it remind members to take safety and health precautions when using community facilities including wearing masks, practicing social distancing, washing hands frequently, and avoiding using the community facilities if they are ill. Susceptible individuals should be advised to continue sheltering at home until health officials suggest otherwise. In addition, associations should make sure that they continue to sanitize common areas according to CDC recommendations, but they also may need to increase such efforts. 

Refer to Health and Safety Standards

We suggest that each association comply with CDC guidelines for particular facilities as these are an accepted and reasonable standard. However, boards also should consult with the local health department and the association’s contractors that service common facilities to determine appropriate steps for reopening and safeguarding users. Pool contractors can advise about necessary maintenance and sanitation for pool areas and pool operations. Cleaning services should determine necessary sanitizing methods and schedules to accommodate increased use. Similarly, contractors who operate and maintain gyms and locker areas will need to implement more frequent and greater safeguards. In particular, the CDC guidelines for pools, hot tubs and water playgrounds can be found here.  

Notices to Users

Furthermore, associations should post notices to members that use of the facilities will be at their own risk and that each user should take appropriate measures to protect him- or herself. Such notices should emphasize to users that protective measures are still necessary:

• wear face masks when outside your homes
• practice social distancing
• wash hands with soap and water frequently
• avoid using the community facilities if you have symptoms of illness
• for swimming pools and other areas with a frequent turnover of users, additional specific instructions may be necessary.

These notices and practices will serve to minimize the spread of the virus and thereby help protect our residents. Multiple notices also will help minimize the potential for claims against the association by any persons who subsequently become ill. Posted notices should be large and obvious and placed on entrances to these areas. Locking some entrances from the outside may help focus members on these postings. The association also may send notices directly to all members, either by mail or e-mail. The more notice provided, the greater the protection to the members and to the association.  

Enforcement and Compliance Issues

In considering options, boards should recognize that implementation and enforcement of safety and health precautions may be difficult and costly. For example, the association would need to have a security guard to screen all people entering the clubhouse or to ask people without masks to leave and to enforce compliance, which could be expensive. Furthermore, sanitation requirements will likely add costs to the association’s budget, such as requiring more frequent cleaning of restrooms and repeated cleaning of equipment in pool areas and gyms. If the board intends to make facilities availability, it may want to poll the owners on whether to incur the additional necessary expenses.

Insurance Questions

Boards also need to be aware of insurance issues. Checking with the association’s insurance professionals to determine whether the association and its board members will be covered in the event of any claims may provide some information. For example, many liability policies contain exclusions for injuries caused by viruses and will not cover such claims. However, insurance agents and brokers cannot give legal advice, and any opinions they render will not be binding on the insurance companies. Legal counsel can advise associations whether their policies contain exclusions that likely will deny coverage, but the fact is that unless and until a specific claim is raised and the insurance company evaluates it, there is no guarantee of insurance coverage in the event of a claim that the association’s practices caused the spread of illness. 

It is possible that directors’ and officers’ (“D&O”) insurance policies may cover any claim against a board for refusing to open facilities, but liability insurance coverage for claims of providing insufficient protection against the virus is unlikely.  It has been suggested that associations arrange for extensive credit lines to be available in the event of any claims being made that insurance refuses to cover.

Conclusion

Boards should consider all of these factors in deciding when and how to reopen common facilities. When the board decides to do so, continued referral to the State and Local requirements, compliance with recognized health and safety standards such as those published by the CDC, and consultation with legal counsel, management and the appropriate vendors should assist in the reopening process while encouraging members to continue safe practices to avoid becoming ill.

If you have questions about this or any other issues with your community association, please contact one of our community association attorneys.

©2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.