Managing the Impact of Covid-19 (Coronavirus) in a Community Association
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The Coronavirus that started affecting the world in December, 2019, is now demanding counter-measures from organizations throughout the United States. Federal, state, and local governments have adopted and are implementing response plans designed to manage and hopefully reduce the virus’s economic and social impact.
Healthcare providers, businesses, and educational institutions are all preparing for and dealing with the serious consequences resulting from the spread of the virus and the COVID-19 illness it causes.
Condominiums, homeowners’ associations, and housing cooperatives are not immune to the effects of the Coronavirus. Like other organizations, community associations need to be prepared and take proactive measures to mitigate the impact of the ongoing pandemic.
Wisely crafted and carefully implemented counter-measures at the local level, including by HOAs, can go a long way toward fighting the virus and “flattening the curve” by slowing its spread.
Responsibilities of a Homeowners’ Association.
HOAs, board members, and officers have a general “fiduciary duty” to act in the best interests of the community and its members. Efforts to stem the tide of “community spread” of Coronavirus are in the best interests of all members of affected communities—helping to keep residents healthy and ease the building pressure on healthcare providers.
Factors to be considered when developing an individual community’s response include the prevalence and severity of the disease in the area, the likely impact on at-risk residents, and measures undertaken by state and local authorities. Necessary actions will inevitably vary among associations, depending in large part on the nature of the community and the obligations assumed by the HOA in the community’s governing documents.
A large suburban association with extensive commons probably needs to be more active in responding to the virus than a small, rural HOA whose duties don’t go far beyond maintaining community roads and enforcing the community’s few restrictions. But even for less active associations, it’s important to be prepared and contribute to the fight.
Safety, Security, and Maintenance of Commons.
Maintaining a community’s common elements—roads and sidewalks, fitness facilities, parks, HOA offices, etc.—is a core duty of most community associations. Usually, this means routine maintenance and repairs. But with the current threat posed by the spread of Coronavirus, an HOA’s duty to effectively maintain common elements may prove vital to the health and safety of residents.
Where weekly cleaning of an association’s office, for instance, might usually be sufficient, thorough daily cleaning and disinfecting may be necessary until the threat of the pandemic passes. This duty becomes particularly important for condominium associations and cooperative buildings in which residents live in relatively close proximity and access common elements on a daily basis.
Recent reports suggest that coronavirus can survive on surfaces for up to three days or longer. So, regular sanitizing of a building’s elevators, stairwells, lobby, and other high-traffic areas may be necessary to protect residents from the virus. Even simple efforts like maximizing sunshine and fresh air in common areas can significantly reduce the virus’s surface life.
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.
A board granted rule-making authority can adopt emergency rules effective until the threat has passed. When doing so, the board should ensure that any procedural prerequisites—like voting and publication standards—are satisfied. At the same time, a community’s response plan should be flexible enough to allow the board to make prompt adjustments as warranted by changing circumstances.
Developing a Coronavirus Response Plan.
Guidelines published by the Centers for Disease Control and Prevention (CDC), along with directives of state and local health officials, are an excellent resource when crafting emergency community rules and policies. The CDC’s guidance to employers identifies several response-plan objectives which are equally applicable to HOAs: (a) reducing transmission of Coronavirus, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining operations, and (d) minimizing adverse effects on other entities.
In furtherance of these objectives, the CDC recommends common-sense sanitary practices like regular handwashing and considerate cough and sneeze etiquette.
And the CDC also suggests organizations make hand sanitizer widely available, regularly clean frequently touched surfaces, and provide access to disinfectant wipes in the vicinity of such surfaces. All of these CDC recommendations should be considered when developing a community association’s Coronavirus response plan. See also, the handout from Health and Human Services, COVID-19: Recommended Preventative Practices and FAQs for Faith-based and Community Leaders.
Where transmission levels are high or expected to be high, the CDC recommends cancelling or postponing large congregations of people—whether in schools, concerts, sporting events, restaurants, or the like. See Interim Guidance: Get Your Mass Gatherings or Large Community Events Ready for Coronavirus Disease 2019 (COVID-19). For an HOA, this could mean canceling member and/or board meetings and scheduled community events. If a community has common elements where numerous people are often present—such as a fitness center—restricting member access to non-essential common elements may be necessary. Shutting down a condominium building’s elevator is probably not feasible, but temporarily closing a community’s pool or racquetball court could be a wise idea.
Though CDC recommendations are generally voluntary, some hard-hit localities have taken more obligatory measures to avoid transmission of Coronavirus. New York State, for instance, has closed casinos, gyms, and theatres, limited bars and restaurants to take-out only, and “strongly advised” non-essential businesses to close by 8:00 p.m. New Rochelle in Westchester County, New York, one of the hardest-hit localities so far, has directed community organizations to implement social distancing standards—canceling large gatherings such as concerts or sporting events in favor of audio/video attendance.
An association developing an emergency response should ensure that the plan complies with and complements any applicable governmental directives. Most HOAs are required to hold member meetings at least annually, but compliance with governmental health directives and the health and safety of residents take precedence. Meetings can be rescheduled after the emergency is over.
Communicating with Residents.
Especially if meetings need to be cancelled, it is incumbent on an HOA board to ensure that relevant emergency rules and procedures are clearly communicated to members. After all, a sensible, well-designed rule or closure will be ineffective if nobody knows about it. Although calling a special, in-person meeting to announce a community’s response plan is probably unwise, a board can use alternative means to communicate its response plan to residents. Emails or telephone calls, written notices sent through the mail, or posted announcements in areas where they are likely to be seen can all be used to communicate with members without increasing the risk of transmission.
Conference calls and online video conferencing can also provide a workable, low-risk alternative to in-person meetings. Skype, Facetime, Facebook, Google Hangouts, Zoom, FreeConference and other similar free online conferencing programs can help an HOA board mitigate risk while continuing to carry out its duties. Court systems throughout the country have already started implementing temporary policies allowing lawyers and litigants to appear via video. HOAs can likewise make use of technology to minimize the need for face-to-face contact until after the conclusion of the emergency situation.
Community members also need to be able to communicate their concerns to the association. An emergency response plan should include a point of contact for the HOA (usually a board member or officer) who residents are instructed to contact with any concerns about the virus and the community’s response. Other residents might be aware of potential health and safety hazards and contamination risks affecting the community that board members have not yet considered.
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’s chance 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.
Protecting High-Risk Residents.
The FHA and other anti-discrimination statutes need to be balanced against reports suggesting that the elderly and people with severe underlying health conditions are the most vulnerable to Coronavirus. This doesn’t mean that young, healthy people have nothing to worry about—just that individuals over 60 years old need to be extra cautious.
A community with high numbers of elderly residents, or residents with disabilities that might increase their vulnerability, should be mindful of this increased susceptibility to Coronavirus when developing an emergency protocol. For instance, the CDC recommends that organizations serving high-risk groups cancel gatherings of more than 10 people (compared to the general standard of canceling if more than 250 will be present).
It may also be necessary to prioritize certain precautions, like sanitizing areas commonly accessed by vulnerable individuals or groups, for the protection of residents who are particularly at-risk. If possible, services designed to help avoid outings in congested areas by residents who are vulnerable due to age or medical conditions could be a good way to protect a community.
An association whose members include a high number of healthcare workers should also take into account the importance of protecting those residents to the overall national and local fight against Coronavirus.
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.
Unfortunately, not all communities have a reserve account. For those that do, a board may be limited in the extent to which it can access the money. In every community, the board’s fiduciary duty requires it to act in good-faith, prudently and loyally, and always in furtherance of the association’s best interests. So, if reserve funds are accessed, they must be used responsibly. In some jurisdictions like Florida, reserve funds can only be accessed if already earmarked for a specific expense or if the expenditure is approved in advance by majority vote of homeowners.
When member approval is necessary, the board should clearly communicate to homeowners the amount of reserve funds it wishes to tap and the purpose to which the money will be applied. Then, the association should conduct a vote in a manner that avoids unnecessary risk of spreading sickness. If the expense is approved, the board must take care to ensure that the funds are carefully disbursed in accordance with the approved plan and the board’s duties to the association.
Economists are anticipating that many Americans will experience reduced work hours and a corresponding loss of income as a result of Coronavirus. There’s a good chance the financial crunch will negatively impact the ability of some HOA members to pay their regular assessments. Associations should be mindful of this potential problem and try to work with members as much as possible. Reserve funds could potentially provide a source of funding to allow an association to make up for missed member payments until the country’s economic life restarts, and homeowners can once again afford the fees.
Homeowner Responsibilities.
Fighting Coronavirus is not just the job of organizations. The CDC itself emphasizes the importance of “individual responsibility” and “personal-level actions” in slowing the virus’s spread. Along with regular handwashing and cough and sneeze etiquette, individual HOA members need to take the initiative in sanitizing their own property. And, in commons areas, disinfectant wipes made available by the HOA won’t help if individual residents aren’t diligent about using them.
Homeowners in high-risk groups need to exercise additional caution and avoid public gatherings and other situations in which exposure is likely. Low-risk residents need to be aware that they could still be carrying and potentially spreading the virus even if they are not symptomatic.
Any resident with symptoms of COVID-19, or who has reason to believe he or she has been exposed to the virus, should “self-quarantine,” avoiding contact with others for a sufficient period to ensure he or she has not been infected. Anyone who may be carrying Coronavirus has an obligation to take necessary precautions to avoid spreading the illness to other members of the community.
Key COVID-19 Readiness Resources (CDC)
Preventing the Spread of Coronavirus Disease 2019 in Homes and Residential Communities
Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission
American Sign Language CDC Video: What to do if you think you have been exposed or start to feel symptoms of COVID-19
Image: CDC/ Alissa Eckert, MS; Dan Higgins, MAMS