Associations, Amenities and COVID-19 – February 2021 Update
It is difficult to believe that a year has gone by since the words “COVID-19” and “Coronavirus” entered our daily vocabulary. During this time, those in the association industry have been forced to learn and digest rapidly developing information, and then to apply, adapt and implement policies to comply with governmental restrictions and recommendations. Among the very difficult decisions made by associations were those concerning non-essential amenities; a great number of communities chose to keep their pools and other recreational facilities closed in 2020.
Although not without controversy and often subject to harsh criticism, many boards believed that the health and liability exposures outweighed the short-term benefit. After all, the pandemic would not last forever. As infection rates spiked and governmental restrictions returned, residents (not all of them) begrudgingly began to accept the bases upon which these decisions were made (some even supported them). Especially here in the northeast and once pool season ended, association boards and management saw some reprieve from the demands for access. However, tired of being confined to their homes, of paying for amenities they are not permitted to access, and in great anticipation of a vaccine, residents expect that 2021 will be different. The pressure to reopen is thus officially ON.
Last year, absent past experience or specific guidance on how to meet the applicable standard of care (for addressing COVID-19 issues as they relate to non-essential amenities), boards considered the following:
• Governmental restrictions and mandates.
• Developing and changing medical information.
• Fluctuating infection rates.
• Unavailability of treatments and vaccines.
• Developing and changing recommendations of CDC.
• Cost and practicability of implementing compliance and safety protocols.
• (Un)availability of insurance coverage.
• Potential liability exposure and cost of defense.
• Absence of immunity legislation.
While some continued to operate amenities by implementing protocols to reduce risk, a larger number of associations (at least in this part of Pennsylvania) kept their recreational amenities closed in 2020. For the latter group, the decision (of whether, and if so, how) to re-open in 2021 should thus follow the same analysis. Perhaps a place to start is to examine what has changed since the decision to close was made:
• Although some governmental restrictions remain in place, many have been lifted.
• Medical information is still developing but at a less volatile rate.
• Infection rates continue to change; virus variants are being discovered.
• Several vaccines are becoming available and are reportedly effective.
• CDC recommendations have generally remained consistent.
• Cost and practicability of compliance may still be significant.
• There is still no insurance coverage for COVID-19 injury/liability claims.
• The uninsured cost of defending a claim is still significant; at this time (although the statute of limitation has not run) we have not seen an onslaught of cases.
• While immunity legislation has been introduced and considered, none has become law (in Pennsylvania).
We also learned from associations that did not keep their amenities closed in 2020 – many of those who operated with restrictions, did so successfully.
Undoubtedly, the most significant development is that several COVID-19 vaccines are now being made available. While effectiveness and duration of the vaccines are yet unknown, the perception is that their existence supersedes any reasonable obstacle to re-opening. Even as we observe a slow and, in some cases, disastrous vaccine roll-out, resident pressure to re-open is already significant. Assuming that the vaccines are indeed effective, boards are beginning to question whether they can (or should) require evidence of vaccination as a condition to granting access to re-opened amenities. Unfortunately, the answers are complicated, and not merely because all of this is so new.
Most would agree that the government cannot impose a wholesale mandate on its citizens to be vaccinated. Some exceptions to this rule exist for public schools, where students are required to provide evidence of vaccination as a condition to attendance (but even then, exceptions apply). Relevant (although not binding on associations) may be recent guidelines issued by the Equal Employment Opportunity Commission (EEOC):
• Employers are authorized to require employees to be vaccinated if they pose a direct threat to others, and if the threat cannot otherwise be mitigated.
• Employers must make reasonable accommodations to those who cannot be vaccinated by reason of a disability or religion (or other protected class).
Whether similar authority may be exercised by associations is yet undetermined. One might argue that if a board is empowered to adopt rules mandating masks and social distancing, it should also be able to require evidence of vaccination. However, several important differences are evident. We have come to learn that most everyone can wear a mask (or equivalent face covering) and that the burden of doing so is insignificant. Moreover, masks are available to everyone and compliance is easily verified. In addition to privacy considerations, a vaccination mandate implicates substantial discrimination and enforcement issues. Particularly during age-based roll-out, access conditioned upon vaccination potentially “discriminates”. Is it reasonable to exclude children from the pool if the vaccine is not yet available to them? Must reasonable accommodations (exceptions from the rule) be made to those who are disabled or have a valid religious reason? Who will verify evidence of the vaccination, how often (first or second dose), and how will those records be kept? Arguably, the mandate creates the expectation of “safety” – the failure to properly enforce it may thus result in additional exposure. If a vaccination requirement is reasonable for non-essential amenities such as the pool, can it or should it apply to use of the elevator? In light of these unknowns and until further information is available, many legal and insurance professionals are hesitant to recommend such a mandate.
What is clear is that this area of the law is novel and continues to develop. The decision of whether to re-open should not hinge (or rely) upon the availability of a vaccine. While certainly promising, a vaccine alone does not eliminate risk – indeed, as illustrated above, the vaccine may create new exposure. Also uncertain are vaccine effectiveness as virus variants develop, duration of the protection they provide, and whether a vaccinated person can continue to transmit the virus. Important is that boards consider the vaccine among all other relevant factors when evaluating the risks of re-opening. Risk tolerance may also depend on geographic location, transmission/infection/death rates, community size, demographics, and financial resources of the association. Different rules may apply to different amenities.
In our experience, association boards have been extremely proactive regarding these matters. We recommend that they continue to be diligent by consulting with subject matter experts such as legal counsel, insurance representatives, sanitation contractors and service vendors. Resources including the following may be considered:
Ultimately, the expense and practicality of re-opening recreational amenities must be considered along with the health, safety, welfare and liability of the community. After meeting with relevant experts, boards may deem it appropriate to keep all or certain amenities closed for now. For example, the tennis court may be different from the pool or the gym. Should a board decide that re-opening is viable (and in the best interest of the association), clear rules should be adopted to comply with applicable restrictions and recommendations. In any event, associations must be flexible to review these decisions and procedures as additional information becomes available.
Owners and residents should anticipate the possibility that not all amenities will re-open, or that re-opening will be on a delayed, limited, or conditional basis. Accordingly, we suggest that boards clearly communicate these issues and convey the bases of their decisions. As the pressure to re-open mounts, managing expectations may prove to be challenging.
This article will appear in the March/April Issue of Community Assets, the magazine of the PA / DelVal Chapter of CAI
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.