An article authored by firm partner Evonne Andris was featured as the “Board of Contributors” expert guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Considerations for Community Associations Reopening Their Amenities,” notes that community associations have generally done an admirable job of implementing and maintaining measures aimed at preventing the spread of COVID-19 among their residents and staff. Evonne writes that with the new vaccines rolling out across the country and the entire world, associations are now reassessing their options regarding the use of their amenities. Her article reads:
. . .While the vaccines hold the promise of moving toward herd immunity, that remains to be months away based on the expected supply and vaccination levels. Also, it remains unclear whether vaccinated individuals may be able to become carriers and spreaders, so masking and social distancing are likely to remain the generally accepted protocols for anywhere people congregate and interact.
Therefore, for the time being, community associations would be well advised to remember that most insurance policies do not cover virus-related claims, and there is currently no federal or state law that shields associations from litigation for alleged on-site virus infections.
While infection-based litigation is a greater concern for businesses in the health care sector, Florida lawmakers are now considering a bill that would create COVID-19 liability protections for the state’s businesses and nonprofit organizations, including community associations. The proposed bill (House Bill 7) provides several COVID-related liability protections for businesses, educational institutions, government entities, religious organizations and other entities.
Under the bill, a covered entity that makes a good-faith effort to substantially comply with applicable guidance would be immune from civil liability for COVID-related lawsuits, which would have a one-year statute of limitation. The proposed bill also provides that if there was more than one authoritative source of government standards or guidance during the relevant time period, a good-faith effort to comply with any of those sources is sufficient to confer immunity from liability.
The good news for community associations is that even though pandemic fatigue has indeed set in, many individuals have also grown accustomed to practicing strong safety precautions and social distancing. That makes it easier for associations to enforce their policies, as they are more likely to be met with general compliance.
Community associations considering any changes to the virus-related measures involving the use of their amenities should consult with highly experienced association attorneys to mitigate any potential risks and liabilities. Some associations may face pressure to demand that residents get a vaccine, and some may receive requests to consider special rules for the vaccinated. Such rules could raise questions about potential legal liabilities involving discrimination and alienation of use claims, so they should only be considered under the careful guidance of association attorneys.
Additionally, requiring residents to get vaccinated may be met with significant opposition and would best be considered if there is a formal government mandate requiring all residents living in community associations to be vaccinated.
For 55-and-over communities, vaccinations could quickly reach high levels, so those properties may be the first to consider incremental changes acknowledging the diminished exposure of their residents and staff.
But for most community associations, there probably will not be any major changes in the early stages of the vaccine roll out, and perhaps well into 2021. Associations should continue to proactively consider rule modifications, such as the possibility of requiring contractors and vendors to be vaccinated before entering the premises, and they should continue to focus on their good-faith efforts to follow government standards and monitor the positivity rate from local testing results to gauge whether their preventative measures need to be adjusted. Associations should also monitor and make use of all the continued guidelines and recommendations from the Centers for Disease Control and Prevention. . .
Evonne concludes her article by noting that with so much hope across the country and the entire world resting on the COVID-19 vaccines and their marking the beginning of the end of the pandemic, community associations and their boards of directors should continue to keep an open mind about their preventative efforts and how the growing use of vaccines should become part of the equation.
Our firm salutes Evonne for sharing her insights into the impact of the Covid-19 vaccinations on community association amenity restrictions with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).