With the declaration of a national emergency and the Centers for Disease Control and Prevention (“CDC”) urging a nationwide halt to gatherings of more than 50 people for the next eight weeks, the COVID-19 public health emergency has created a lot of uncertainty for communities. Communities need to balance taking reasonable steps to limit exposure and spread of the virus while continuing to conduct business.
On March 9, 2020, Governor Ron DeSantis issued Executive Order 20-52 declaring a State of Emergency for COVID-19. This declaration arguably activates certain community association emergency powers pursuant to Fla. Stat. 718.1265 (Condominiums), 720.316 (HOAs), and 719.128 (Co-Ops), which grant special powers to community associations to protect the health, safety, and welfare of the association members and property.
While these statutes were enacted in response to natural disasters such as hurricanes, community associations should consult with their legal counsel to determine if and what emergency powers it should utilize in response to the coronavirus pandemic. Some of the special emergency powers that should be reasonably considered include the power to conduct board meetings and membership meetings with notice given as practicable, the power to cancel and reschedule association meetings, and the power to – based upon advice of emergency management officials or upon the advice of licensed professionals – determine if any portion of the association property should be made unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.
Indeed, early indications from the Department of Business and Professional Regulation and the Division of Condominiums, Timeshares, and Mobile Homes are that community associations may reasonably utilize the statutory emergency powers. However, we recommend caution. Boards of directors planning on closing association areas or amenities should consult legal counsel and ideally obtain documentation from emergency management officials or licensed professionals to support their decisions. Additionally, all decisions should be made at properly noticed board meetings, even if such meetings are done remotely or with shortened notice periods pursuant to the statutory emergency powers.
All community associations have a duty to protect members and residents from reasonably foreseeable harm. In light of this duty, below are mitigation strategies communities should consider:
Board and Member Meetings
What a difference a week makes when faced with a global pandemic. The CDC is encouraging “social distancing,” especially avoiding gatherings of more than 50 people. Just a week ago the threshold was 250 people. The 50-person threshold likely covers most association meetings. If your community has more than 50 residents, it should consider holding virtual meetings or cancel and postpone the meetings all together. Even if meetings are usually poorly attended, community associations should not take the risk.
However, some matters simply cannot be delayed. Consultation with management and legal counsel prior to any cancellations is advised. For matters that cannot be delayed, communities should explore alternative forms to host meetings and obtain the necessary consents. Obtaining written consents and electronic voting are options to consider, as well as requesting limited proxies be scanned and returned electronically via fax or email.
Common Areas and Amenities
Community associations generally control and are responsible for the common areas of the community. The following practices should be implemented:
- Enhanced cleaning and sanitizing of all common areas, especially high traffic areas such as lobbies, elevators, gyms, pools, clubhouses and public bathrooms
- Installing hand sanitizer dispensers or wipes on common areas for owner and guest use
- Routinely informing staff and regular visitors of best practices, with reference to applicable health agency guidance
- Consider postponing or cancelling social gatherings, events and meetings within clubhouses or other recreational facilities
- Consider closing common areas amenities, such as gyms, clubhouses, and pools to aid in the “social distancing” recommended by the CDC
Communities who choose to leave their amenities and facilities open should consult with their insurance providers for recommendations regarding any potentially applicable exclusions within their policies related to bacteria and viruses.
Notifying Residents of Infections in the Community
The area of most concern for association liability is the question of whether boards of directors should notify residents if a confirmed case of infection is known in the community. Privacy laws and prohibitions against disclosure of medical records must be analyzed and weighed against the duty to protect residents from a foreseeable and known danger. The risk of spreading the disease if residents are not properly informed is real – and lives are potentially on the line.
A general disclosure to the community that a resident has tested positive for the virus is recommended. Ideally, in addition to self-quarantining, the infected resident would agree to provide written consent to disclose their positive test so that the other residents could make informed decisions as to whether any of them need to self-quarantine and be tested. If such resident will not grant such written consent, or refuses to self-quarantine, community leaders need to consult legal counsel to evaluate their disclosure authority and obligations.
Other Measures to Implement
- Use all available communication channels to communicate updates and best practices to residents
- Encourage residents to wash their hands frequently and cover their nose and mouth when coughing or sneezing
- Encourage residents to practice social distancing
- Encourage residents to report and self-quarantine if they have fever or other signs of illness
- Continue to monitor developments and follow the guidance of CDC and the Florida Department of Health
- Establish a community-wide emergency plan
- Review your insurance policies
This is a fast-moving crisis. Circumstances on the ground are changing on a daily, if not hourly basis. Community leaders should continue to monitor and rely upon the CDC and other reliable health officials for guidance. Scrutinize where you are obtaining information. Finally, community leaders are encouraged to stay calm, take reasonable and rational actions to protect their residents, and consult their legal counsel before making significant decisions.