Coronavirus Frequently Asked Questions for Community Associations
March 12th, 2020 | Community Association Law Blog
By Eric F. Frizzell, Esq.
As concerns grow about the spread of the coronavirus, a very fluid situation that seems to be changing daily, we recommend that you regularly consult the website of the Center for Disease Control and Prevention (“CDC”) at www.cdc.gov for the latest updates, and review the CDC’s Frequently Asked Questions at https://www.cdc.gov/coronavirus/2019-ncov/faq.html. You may also wish to visit the website of the New Jersey Department of Health at: https://www.cdc.gov/coronavirus/2019-nCoV/summary.html#risk-assessment
Our law firm reached out to the health departments in two of the larger New Jersey cities in which we represent community associations to find out whether those departments are supposed to be notified by healthcare providers of any resident who has the coronavirus or who has been instructed to self-quarantine, and whether the health department will then inform the community association in which the resident lives. We have been advised by one of those health departments that although they are supposed to be informed if a resident is diagnosed with the coronavirus, the city is presently precluded by federal HIPAA law from notifying the condominium association in which the resident lives.
Here are some questions we anticipate you may have, and our views in response.
If a resident of a building has been diagnosed with the coronavirus, or has been otherwise advised by public health officials to self-quarantine, can the Association ban the resident from the building? No. If a resident has been diagnosed with coronavirus and/or has been told to self-quarantine, he/she is entitled to reside in his/her unit unless and until local and state health officials or other governmental authorities deem otherwise.
Since it appears that your municipality will not notify you (you may want to have your property manager contact the local Health Department and confirm, or we can do it if you wish) that someone in your building has coronavirus or has been otherwise instructed by public health officials to self-quarantine, the only way you will know that this is the case is if the resident decides to notify you. In addition, the municipality might not share with you the specific self-quarantine restrictions it is imposing on the resident. This is unfortunately a very difficult situation that we continue to assess.
That being said, if you are notified by a resident that he/she or someone residing in their unit has been diagnosed with coronavirus and/or has been directed by public health officials to self-quarantine, and you observe the person outside of their unit, we recommend that you immediately notify your local Board of Health and ask them to immediately take whatever action they deem appropriate. (It seems possible that a quarantined resident may be allowed by the public health officials to leave their unit for the purpose of visiting a healthcare provider or such other purposes as may be specified in their quarantine instructions.) Of course, keep your legal counsel informed as well.
Should we close our exercise room, viewing room, conference room, spa, pool, and other amenities? Since we are not healthcare providers or public health officials, and cannot offer an opinion on how transmissible the coronavirus may be, we refer you to the CDC and New Jersey websites specified above. That being said, in our view it would be reasonable and conservatively prudent, and legally justifiable, for you to close all such amenities at present if your Board so chooses. In the alternative, if you decide to keep any such amenities open, you should immediately install signs that advise users that they use the facilities at their own risk, and that inform them of proper procedures for cleaning equipment before and after use, and of CDC recommendations for protecting their health (e.g., washing their hands with soap and hot water for at least 20 seconds). You may also wish to cancel all social events in your community.
Can the Board take binding votes by email and phone, rather than at an open meeting? Under New Jersey law, all binding votes by a community association’s Board, except those dealing with certain specified exception areas, normally must be taken at an open meeting that unit owners are allowed to attend, not in closed session, by email, by phone, and ratified at a later open meeting.
Given the present circumstances, however, we believe it is legally justifiable for a community association Board to hold its meetings by video conference, telephone conference call and/or to make decisions by email and then ratify them at the board’s next open, in-person meeting. The Board should promptly post in the management office and/or electronically notice of any such decisions so that unit owners remain informed. (If you have the capability to meet by electronic means that permits unit owners to view or hear your meeting, that is preferable to the Board voting by email, phone, or in closed session. And remember, unless your by-laws provide otherwise, unit owners have no right to speak at a Board meeting.)
Our law firm normally strongly advises our clients against taking binding votes in closed session or by email or phone (other than on matters excepted by statute) and then ratifying them at a future open meeting, because doing so fails to comply with New Jersey law. It is our opinion, however, that in a true emergency in which the need for an immediate decision precludes the Board from holding an open meeting before action in response to the emergency is necessary, a Board is justified in voting by means other than open session. The current situation constitutes an emergency of another kind, namely, avoiding unnecessary gatherings of large groups of people to try to avoid the possible spread of the coronavirus.
Can we notify unit owners and other residents if a resident of our community has been diagnosed with the coronavirus?
In our opinion, it is reasonable for a community association to notify its unit owners and other residents that a resident of the community has been diagnosed with the coronavirus IF:
– the resident has notified the Board or property manager that the resident has been diagnosed with the coronavirus; OR
– another current resident of the same unit has notified the Board or property manager that the resident has been diagnosed with the coronavirus; OR
– a public health official has officially notified the Board or property manager that the resident has been diagnosed with the coronavirus.
However, you should not disclose to the unit owners and residents the name, unit number or any other information that could be used to identify that resident. You also should not rely on rumor, innuendo, or informal, unofficial sources that claim that a person has been diagnosed with the coronavirus.
Can we notify unit owners and other residents if a resident of our community is self-quarantining?
In our opinion, it is reasonable for a community association to notify its unit owners and other residents that a resident of the community is self-quarantining IF:
– the resident has notified the Board or property manager that he/she has been directed by his/her health care provider or public health officials to self-quarantine; OR
– another current resident of the same unit has notified the Board or property manager that the resident has been diagnosed with the coronavirus; OR
– a public health official has officially informed the Board or property manager that the resident has been directed to self-quarantine.
Again, however, you should not disclose to the unit owners and residents the name, unit number or any other information that could be used to identify that resident. You also should not rely on rumor, innuendo, or informal, unofficial sources that claim that a person has been directed to self-quarantine.
Can we screen guests and visitors to our building?
In our opinion, it is reasonable for a community association to screen guests and visitors by asking them to complete and sign a form that asks the following questions, and to refuse entry into your building if they answer “yes” to any of them:
1. Have you been diagnosed in the past 14 days with the coronavirus, COVID-19?
2. Have you had a cough, fever, or shortness of breath at any time in the past 14 days?
3. Have you been directed to self-quarantine by a health care provider or public health official during the past 14 days?
4. To your knowledge, have you been in contact during the past 14 days with any person who has been diagnosed with the coronavirus, COVID-19?
5. To your knowledge, have you been in contact during the past 14 days with any person who has been directed by their health care provider or by public health officials to self-quarantine?
We recommend that any person who answers “Yes” to any of these questions be barred from entering your building and be asked to leave. If they refuse to leave, we recommend that you advise them that you will call the Police if they do not leave, and then in fact call the Police if they refuse to leave at that time.
We recommend that you ask a guest or visitor these questions each day on which they wish to enter your building, as conditions could change.
Implement immediately enhanced cleaning and disinfection of all common areas, as you are doing, particularly those such as elevator buttons, door handles, restroom faucets and fixtures, in accordance with recommendations from the CDC, State of New Jersey, and local health officials and notify residents of the measures you are implementing.
We would be glad to discuss with you these questions or any other questions you may have regarding this crisis.