With Covid-19 cases on the rise and the holidays approaching, the re-opening of common element facilities should be viewed with care. Associations should revisit the numerous safety considerations that informed the re-opening process. The following is a list of some of these critical issues:
- Associations should confirm whether they are still able to adhere to the minimum requirements their municipalities are imposing for reopening, including both mandatory guidelines and advisory guidelines. For example, in Miami-Dade County, an updated “New Normal Handbook”, including both mandatory and advisory pool re-opening guidelines, has been posted by Miami-Dade County as of October 22, 2020. CDC guidelines should also be consulted.
- The Association can adopt and circulate a set of guidelines/rules, and these should state that as a default, they will incorporate by reference all applicable minimum requirements of municipal and CDC (and that any inconsistent provision in the rules will be considered superseded by a contradictory State, CDC, or municipal requirements).
- Associations can examine the feasibility of using a release. Alternatively, associations can examine using a form of disclaimer or at least a notice of assumption of risk, even if not a signed release. Associations can consult with us regarding the preparation of a notice that clearly explains the consequences of non-compliance and that the risks of using amenities are assumed by the user.
- Associations then should consider its ability to enforce the requirements in good faith and the practicality of doing so. For example, there is a practical issue of how to confirm whether social distancing requirements are being met by various individuals (e.g., by stationed security personnel or monitors) and how to enforce violations. Any reopening guidelines can clearly specify enforce measures that would be utilized and examples of the consequences of non-compliance. The association can similarly adopt an enforcement plan. Ultimately, if enforcement fails and guidelines cannot be adhered to, the closure of the amenities may become mandatory.
- The suspension of use rights or use of fines can be a powerful enforcement tool for Covid-19 precautionary restrictions. However, associations have to consider the procedural steps required to use these tools, such as notice and hearing requirements in front of an impartial committee.
- Associations should not take for granted formalities relating to Covid-19 related adjustments and policies, such as adoption / ratification of the policies and guidelines and the use of remote meetings, documentation of reasonable deliberations and reliance on management to adopt Covid-19 related policies, and the intention to be governed by proper health department requirements and to comply with emergency and re-opening orders.
- Associations can also reach out to their insurance agent to consider any detrimental impacts on insurance as a result of reopening given the uptick in cases.
- Given that the holidays are approaching, associations should be ready to consider guest and gathering control policies.
In this period of Covid-19 resurgence, we encourage everyone to enjoy themselves but stay safe and adhere to safety guidelines.
About the Author: Jonathan S. Goldstein concentrates his practice in the areas of condominium and Homeowners Association (HOA) law, commercial litigation and construction litigation. Mr. Goldstein is Board Certified in the area of Condominium and Planned Development Law, a distinction bestowed upon a select group of attorneys recognized as being specialists in this practice area by the Florida Bar.