State of Uncertainty: How New Laws and the End of the State of Emergency Have Changed Covid for Community Associations

Omicron and Delta have testified and the verdict is in: Covid is here to stay. Across the nation, while many other states are navigating Covid-19 vaccine requirements and mask mandates, Florida’s Governor has gone on a different kind of offensive relating to Covid. In April 2021, Governor Ron DeSantis issued an executive order which prohibits businesses, and employers from requiring their customers, constituents, and employees to show proof of Covid-19 vaccination, which the Governor believes “would create two classes of citizens based on vaccination.” Shortly thereafter, Governor DeSantis signed into law a bill passed by the Florida Legislature that broadened the Governor’s April 2021 executive order by applying the prohibition to all business entities, including not-for-profit corporations such as condominium associations, and authorizing the imposition a $5,000 fine, per violation, against business that conditions access, entry or services upon proof of Covid-19 vaccination. Amongst the alleged violators were a sports team, performing arts center, a municipality, and even a condominium association. Some policies, such as the one imposed by the City of Plantation, required all city employees to be fully vaccinated, or face unpaid leave and eventual termination. Other policies, such as the one imposed by the Broward Center of Performing Arts, imposed a testing requirement which can be waived by showing proof of vaccination. Regardless, the Governor sought to fine both businesses for violating his new law prohibiting “Covid-19 Vaccine Passports.”

In November Florida enacted a law that restricted the abilities of employers to require vaccinations for their employees.  Many associations and management companies had an understanding that private employers could impose vaccination mandates on their employees (notwithstanding certain discrete issues such as the original emergency approval status of the vaccine).  Similarly, associations could negotiate with vendors who would contractually agree or represent that they had such mandates imposed.  Subject to a potential legal challenge, the legislation in November has upended certain core assumptions about operations based on vaccination status of employees for associations, management companies, and vendors.

Requiring proof of vaccination status has been a very controversial issue as government officials try to protect and promote the health of their communities while balancing those objectives with the free flow of commerce and protecting individuals’ personal freedoms and privacy rights. These laws clearly affect policies and rules enforced and imposed by condominium associations. While condominium associations face similar issues as government officials when determining how best to protect vulnerable residents against such a widespread and lingering pandemic, they must also be cognizant of the state and federal laws establishing the boundaries of their authority. Gone are the days when Covid policies were considered temporary measures. As the world has watched the virus evolve and continue to spread, condominium associations must consider more permanent rules and regulations.

In the context of mask requirements and emergency powers, associations have seen their authority dramatically wane since the Governor declared the end to a statewide Covid State of Emergency.  While the emergency power statutes (§§ 718.1265, and 720.316, Fla. Stat. for condominiums and homeowners’ associations, respectively) were amended and enhanced in 2021, one thing that didn’t change was a condition that a state of emergency be in place pursuant to the statute regarding the Governor’s power to issue a state of emergency.  This specific cross-reference in the statute calls into question whether a local municipality’s lingering state of emergency is enough to trigger the emergency powers.  The emergency powers provided tools to cut off access to certain common elements / common areas based upon health and professional experts; however, this power is arguably moot, shifting the scope and mechanisms available to enforce mask requirements.  Similarly, associations could previously rely on compliance with local emergency orders as a basis for Covid-19 restrictions, including mask mandates, but last Spring and Summer an executive order and enacted law nullified such local ordinances.

Now, mask requirements are very difficult and impractical to enforce because at most they are simply rules like any other, subject to a requirement that they not exceed the authority in the Declaration, be reasonable and non-arbitrary, and subject to enforcement through an action for injunctive relief, damages, or enforcement committee remedies such as fines and after-the-fact suspension of use rights (the latter of which are the most likely new mechanisms for mask mandate enforcement).  Given the administrative burden and liability immunity afforded to associations based upon other legislation in 2021, discussed below, many associations are strongly recommending masks be worn but not requiring them.

Associations that are now more limited in their powers to police protections against Covid-19 can take some legal solace in new laws that shield them from lawsuits for damages caused by Covid-19.  While this liability immunity is not total and can be overcome in limited and extreme instances based upon compliance with very challenging prerequisites, the immunity protects associations that act reasonably and in good faith from liability arising from Covid-19 illness.  It is worth noting that this liability shield is not intended to address lawsuits concerning the exercise of association powers generally and compliance with their governing documents and statutory schemes.

Transitioning from temporary measures to permanent rules in this new Covid landscape can trigger more pushback from residents and unit owners who, like all of us, are learning how to adapt to the new normal. At this juncture, the law is still developing and we urge condominium associations to proceed with caution and consult their legal counsel when creating rules and regulations with respect to Covid-19.