Continuing the Fight | Maintaining Operations During Ongoing Covid-19 Restrictions
After an alarming spike in cases as the cooler months settled in many of our communities have returned to quarantine and social distancing measures, but the pandemic continues to create a unique challenge to the millions of Americans who live in community associations. From those living in close quarters, such as condos or cooperative, to the board members who often meet monthly to discuss the issues facing a community, these types of socializations need to be addressed differently to ensure the health and safety of everyone in your community.
Below are some of their suggestions as well as some expert advice on ways to continue operating your community during these difficult times.
Community Meetings & Events
Community associations should check with the state or local health officials to determine if guidance or restrictions are in place regarding group gatherings. There are several methods by which community association boards conduct business in the absence of everyone gathering at the same time and location. Electronic voting, virtual meetings, streaming live events via social platforms and even some message boards can be replacements for in person meetings. You should always consult your management company contacts or board attorneys to determine which solutions are right for you community.
Conference calls can be used in lieu of public meetings during these times. Concerned directors can attend meetings electronically via telephone, provided they can hear all other directors in the meeting and all other directors can hear them. This is easily accomplished with a conference phone. Attendance in this manner counts as if the director were physically present in the meeting. Technology has reached the point where a call-in number can be published along with the agenda so members who wish to attend can also call into the meeting. All attendees except the board should mute their phones and only listen to the meeting. Except for open forum, members cannot participate in the board’s meeting, but they are allowed to listen. For associations where there may be a large number of attendees, boards should consult with a technology expert to determine which call-in service best serves their needs.
Common Areas & Amenities
Community associations often control the common areas, while owners are responsible for their private property. If you are in a community with shared amenities such as parks and are not currently under shelter-in-place orders, you may still want to take some additional initiatives to help protect your community
- Extensive cleaning, disinfecting or wiping down of common areas and common-area surfaces
- Postponing or canceling community events and meetings
- Closing common areas and amenities such as gyms, clubhouses, and pools
- Installing hand sanitizer dispensers or wipes on common areas for owner and guest use
- Share CDC fact sheets. The U.S. Department of Housing and Urban Development is part of the White House Coronavirus Task Force. HUD is encouraging housing providers, including community associations, to share relevant CDC fact sheets with individuals, families and staff members.
Community associations are reminded that their responses to residents regarding the coronavirus must be compliant under the Fair Housing Act and related regulations.
If you are under shelter-in-place or similar orders, or even if your area is under recommended social distancing guidelines, you may still be able to close certain common amenities based on necessity. Most governing documents provide clear authority to the board to “operate, manage, and supervise” common facilities, which could include suspending their operations. If the board believes that closing a gym, business center or community room is in the interest of the health and safety of residents to minimize the spread of disease, this is arguably a defensible, sensible business decision under the governing documents. If a board makes this kind of decision, we recommend making the rationale clear in a written communication to the members.
Consider Adopting Emergency Policies and Operations
Many community associations will need to temporarily alter their rules and regulations and modify operations to appropriately respond to coronavirus. When doing so, the board should strive to meet all requirements imposed by the HOA’s governing documents. Typically, a community’s declaration and bylaws set forth general policies and duties and leaves the board of directors some discretion for carrying them out.
What to do when a resident has tested positive for Covid-19?
If the person with the coronavirus authorizes full disclosure, the board can disclose the person’s name to the membership. This allows residents who had contact with the person to immediately self-quarantine and get tested for the virus. However, there are some major precautionary steps that should be taken. Ensure that authorization for sharing this information is in writing from the person or their attorney and second share the information in a secure format such as a letter or via private email communications.
If the infected person tells the board in confidence that he contracted the coronavirus and does not want anyone to know, the board may still have a duty to notify the membership. However, it would do so without disclosing the person’s name. The board would simply report, “A resident has reported testing positive for the coronavirus.” A disclosure, however limited, alerts residents to take extra precautions to protect themselves. In addition to giving notice, the board should contact the Centers for Disease Control and Prevention. The CDC has the power to make additional disclosures, trace contacts, quarantine individuals and take other actions it deems medically necessary.
As volunteers, boards are allowed to seek expert advice. When confronted with issues involving the coronavirus, directors should not make decisions based solely on recommendations in a newsletter, whether mine or someone else’s. They should contact legal counsel and the CDC for guidance.
Continued Compliance with Applicable Law
Although an association will likely enjoy somewhat wider latitude when responding to a genuine emergency, emergency policies must still comply with laws governing HOAs. For instance, the federal Fair Housing Act (FHA) prohibits housing discrimination based on race, color, religion, sex, familial status, national origin, and disability. Federal courts have also interpreted “familial status” as covering age-based restrictions.
An emergency HOA regulation that effectively discriminates against certain residents due to a perceived increase in their ethnicity or nationality chances of infection violates the FHA and could easily result in liability to the association. An HOA’s emergency policies need to be “facially neutral” (i.e., not expressly discriminate against any protected class) and should be implemented in a consistent, non-arbitrary manner. Likewise, community associations should refrain from publishing members’ health information to other members to avoid running afoul of state and federal laws and regulations protecting the confidentiality of personal information.
Accessing Reserve Funds in an Emergency
While there are plenty of coronavirus precautions that can be taken at little or no cost to the HOA, it may be necessary for some communities to access reserve funds to fully implement an emergency response plan. A reserve fund is an account maintained by an HOA or condo association to pay for irregular, long-term maintenance or to cover unforeseen expenses. Reserves should not be viewed by a board as “petty cash” to be tapped for convenience. But, if the situation warrants, reserves can provide a source of cash for use in protecting the community in an emergency.
Communication is key
Whatever a community decides to do regarding meetings, events, common areas, amenities and other measures regarding COVID-19, it should clearly and consistently communicate with residents. Consider using a newsletter, website, email, social media or bulletin board to inform and educate. If you are a member of the board, ensure that you are communicating with owners so that they are aware of the initiatives and actions being taken by your community.
The organization is encouraging members, chapters and the community associations industry in general to follow the latest guidance and updates issued by the Centers for Disease Control and Prevention. CAI is offering general precautionary guidance from officials and adding some common-sense guidelines for the industry.