Associations, Amenities, COVID-19
As Pennsylvania Governor Wolf transitions most of the Commonwealth from the Yellow to the Green phase of his reopening plan, community residents anxiously anticipate a return to normal. However, while the phased reopening plan lifts various restrictions for certain business and activities, community and condominium association leaders must nonetheless consider the feasibility, safety, cost and risk of reopening their amenities. Despite increasing pressure to swiftly grant access to these facilities, boards must continue to make difficult and important decisions.
The easing of governmental restrictions, even during the Green phase, must not be seen as a mandate to open. State or municipal permission to reopen does not impose a requirement on associations to follow. The decision of whether to reopen falls squarely within the broad powers granted to governing bodies of associations. All board decisions are subject to the appropriate standard of care; board members must act in good faith, “in a manner they reasonably believe to be in the best interest of the association and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances.” In performing their duties, members of the board are entitled to rely in good faith on opinions, reports, or statements from experts and professionals within a particular field (for example contractors, consultants, attorneys, insurance professionals). As restrictions are lifted, boards must still consider
1) whether to open any or all facilities, and if so,
2) what conditions are to be imposed.
Various agencies have published COVID-19 related recommendations and guidelines for particular activities and facilities. Examples of, information, protocol and signage are available on the following websites:
- CDC – Cleaning and Disinfection for Community Facilities
- CDC – Guidance for Administrators in Parks and Recreational Facilities
- CDC – The Model Aquatic Health Code
- CDC – COVID-19 Resources
- USTA – Playing Tennis Safely
(Please note, however, that the foregoing operational guidelines are expected to be frequently revised and republished as the CDC and various state or county departments of health evaluate pandemic development.)
Within these restrictions and guidelines (as they develop and are made available), boards must consider the feasibility, risk, and cost of compliance. The decision of whether to open these facilities must also involve the association’s insurance agent. If an owner or resident (or person with whom they came into contact) alleges to have contracted COVID-19 at an association amenity and files suit, is there insurance coverage to defend the association or the individual members of the board? Most liability policies contain communicable or infectious disease exclusions. If coverage is not available, the risk of reopening may simply be too great to accept. Liability waivers offer a layer of protection but may not hold up in a court of law, generally apply only to the persons who sign them, and do not prevent anyone from filing suit. Such claims must be defended irrespective of merit; the cost of which, especially if not covered by insurance, could be substantial. This exposure is NOT eliminated with the lifting of governmental restrictions. Indeed; if, as is reportedly the case in various parts of the United States, the result of reopening is a spike in COVID-19 infection rates, the risk of exposure arguably increases.
Ultimately and in all phases of reopening, the expense and practicality of operating recreational amenities must be considered along with the health, safety, welfare and liability of the community. After consultation with legal counsel, insurance representatives, sanitation contractors and the service vendors, it may be appropriate to keep the amenity closed for now (or for the 2020 season) – even in the Green phase. Should a board nonetheless deem reopening to be viable (and in the best interest of the association), clear and specific rules should be adopted and enforced to comply strictly with all applicable restrictions and recommendations. In either event, associations must be flexible to review these decisions and procedures (this Article and the information herein is current as of June 22, 2020) as they evaluate changing statistics and guidelines.
Owners and residents should expect the possibility that the association’s amenities will NOT be open this year, or that they will reopen on a delayed, limited, or conditional basis. Accordingly, we suggest that boards clearly communicate these issues to convey the bases of their decisions, and thus help manage resident expectations.
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.
