In August 2020, the State of California released the Blueprint for a Safer Economy (“Blueprint”) to permit the gradual reopening of certain businesses and activities. As part of the Blueprint, every county is assigned to a tier each week based on its positivity and case rates. Since August 2020, the Blueprint has governed what businesses and activities can reopen and what restrictions must be followed in order to reopen.
However, in April of this year, Governor Newsom announced expanded gathering and private event guidelines and that California is looking to move beyond the Blueprint. On June 15, 2021, tentatively, it is anticipated that all industries across California will be permitted to return to usual operations with common-sense risk reduction measures such as masking, increased cleaning and vaccinations. Local counties and cities may choose to impose additional or more restrictive requirements.
This announcement certainly appears to be the light at the end of the tunnel that we’ve all been waiting for. However, if this last year has taught us anything it is just how quickly things can change. Something that is permitted one day can be prohibited the next without any warning. Therefore, while it might seem impossible to keep up to date with the ever-changing restrictions and guidelines, it is imperative for associations to do so. Associations must take steps to fight “pandemic fatigue” and remain vigilant and informed regarding government guidelines and mandates pertaining to reopening and gathering during COVID-19.
Boards and association managers should routinely check state and any local restrictions and guidance, even as California moves beyond the Blueprint. Boards should rely on association experts, such as management and legal counsel, to advise regarding what activities are and are not permitted and how to reopen permitted common area facilities or hold permissible gatherings in compliance with government guidelines and mandates.
POTENTIAL LIABILITY AND INSURANCE
While everyone is eager to get back to a sense of normalcy, failing to follow guidelines issued by government authorities or take common-sense precautions could make it very challenging to demonstrate an association acted reasonably in its duty to exercise care in governing the common areas under its control and could expose the association to liability. If following guidelines in a meaningful manner is not feasible for an association (including following cleaning protocols, ventilation requirements, and capacity restrictions), then the reasonable action may be to leave common area facilities closed until such measures can be complied with.
One potential source of liability community associations could face are claims by residents or guests who contract COVID-19 and allege that the community association failed to exercise reasonable care in guarding against, or warning of, the risk of exposure to the COVID-19 virus. Such a claim would likely be based on the fact that community associations have a duty to exercise due care for the safety of residents and guests in those areas under the association’s control (Frances T. v. Village Green Owners Ass’n. (1986) 42 Cal.3d 490). A person making such a claim may ultimately have a difficult time proving they caught COVID-19 at the association’s facilities and not, for example, the grocery store they recently visited. Nevertheless, any such claims brought against a community association should immediately be tendered to the association’s insurance companies under the general liability, directors & officers, and any umbrella policies.
Unfortunately, not many, if any, community association insurance policies provide coverage for claims related to sickness or bodily injury caused by COVID-19. However, even if a community association’s policies contain these exclusions, the insurance company may have a duty to provide a defense for the association against any lawsuit filed, while reserving the right to not pay any uncovered claims. Boards should review their association’s insurance policies with the association’s insurance expert to understand levels of coverage, any exclusions, and what is considered a covered claim in the association’s specific policies.
NEXT STEPS AND CLEAR COMMUNICATION WITH RESIDENTS
Before reopening any common area facility or amenity, associations should consider consulting with its facility experts (janitorial, engineering, plumbing) to prepare facilities that have been shut down or inactive for prolonged periods for reopening. Boards should also discuss whether amending operating rules for the use of these areas is needed to ensure compliance with the various government restrictions and guidance. Consider whether a reservation system is necessary to manage capacity limits or ensure proper social distancing is maintained at reopened facilities or permitted gatherings. Discuss with association legal counsel whether residents can be asked to sign a waiver to use common area facilities permitted to reopen or if vaccine or testing verification can be requested to attend association gatherings or private events. Remember, failing to have and follow proper protocols could expose the association to liability.
Residents are understandably eager to use the common area facilities and socialize with the community at association events again. Frustrations are likely at an all-time high. That’s why clear communication with residents is key in these uncertain times. Associations should aim to provide residents with updates regarding the status of common area facilities and events and issue clear rules and expectations for holding or attending those activities when they are permitted to return. Staying up to date on the state’s guidance and mandates and how those impact association activities and facilities will allow boards and management to develop timely and informed plans and protocols that can easily be communicated to the community.
Everyone is looking forward to getting back to a time where clubhouses, social gatherings and community events are permitted free of restrictions, and California seems to be taking a step in that direction. However, it is reasonable to anticipate that this may merely be a small step on a much longer road back to “normal.” Associations and residents should expect certain restrictions and common-sense measures to continue to be required at common area facilities and association gatherings and private events for the foreseeable future in what might be our “new normal.”
This article was originally published in the Summer 2021 Issue of The Law Journal by by the California Association of Community Managers (CACM).