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The Coronavirus Tragedy of 2020: The Community Association Guide
By March 24, 2020 Posted in Community Association Law Share
COVID-19, which is being commonly referred to as “Coronavirus” is considered a worldwide pandemic by the World Health Organization (WHO). The Coronavirus Tragedy of 2020 continues to impact the entire world. The Federal Government declared Coronavirus a National Emergency. Areas where large amounts of people gather have been closed or prevented audiences to be present (Broadway, Disneyland/Disney World, etc.), including sporting events (NBA, NHL, UFC, MLB, etc.). Italy’s recorded deaths surpassed those of China recently. Coronavirus is a continuously increasing threat to the entire world.
New Jersey Governor Phil Murphy has made a series of restrictions since the first Coronavirus case in New Jersey. His orders began with limiting non-essential travel after the hours of 8:00 a.m. and 5:00p.m., and led to setting curfews for business, shutting down schools, and eventually, to the newly issued Executive Order, which is deemed a “Stay-at-Home” Order. Information on this Order is below:
https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf
Today, the number of cases in New Jersey increased today by 935, with 7 new deaths. (Davis, Tom, NJ Coronavirus: 1K New Cases, 7 More Deaths; Enforcement Underway, Patch, https://patch.com/new-jersey/tomsriver/watch-live-gov-phil-murphy-issues-nj-update-coronavirus, March 23, 2020). Recognizably, there may be a delay in the test results, which may then be further off-set by the lack of tests being distributed at this time.
At the early stages, there were many who thought that this was “no big deal,” while others think that those leaving their houses jeopardize hundreds of others. While the Coronavirus does not take the life of every victim, it could take the life of any one victim. We all must admit – this is serious.
The question is: Where does my Community Association fit into all of this?
We published a brief blog on our website describing COVID-19’s impact on Associations that can be viewed below:
http://www.lawgapc.com/blog/community-associations-and-the-coronavirus/
The order prohibits residents of New Jersey from leaving home for any purpose not explicitly stated in the Order. The following are the reasons that you may leave your home as a New Jersey resident:
- obtaining goods or services from essential retail businesses;
- obtaining takeout food or beverages from restaurants, other dining establishments, or food courts;
- seeking medical attention, essential social services, or assistance from law enforcement or emergency services;
- visiting family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker or romantic partner;
- reporting to, or performing, their job;
- walking, running, operating a wheelchair, or engaging in outdoor activities with immediate family members, caretakers, household members, or romantic partners while following best social distancing practices with other individuals, including staying six feet apart;
- leaving the home for an educational, religious, or political reason;
- leaving because of a reasonable fear for his or her health or safety; or
- leaving at the direction of law enforcement or other government agency.
Enforcement & Maintenance:
The Board is responsible for the enforcement of Rules and Regulations, as well as Common Area maintenance.
Enforcement:
The Governor of the State of New Jersey issued an Executive Order. Failure to abide by that Order is punishable by a prison sentence of up to 6 months or a fine of $1,000.00. No one should leave their homes, but for those reasons listed in the Order. Even when an individual leaves home for those reasons, the individual must abide by “social distancing” – a term that we have all become far too familiar with – which means staying six feet away from anyone else. The difficulty with Coronavirus is that the individuals may not know whether they, themselves have Coronavirus. The incubation period, according to the CDC, is 2 and 14 days. This means people can pass the Coronavirus to others, many days prior to exhibiting systems. The other issue is that many carriers of Coronavirus exhibit mild symptoms, such that they do not even need to see a doctor. Additionally, Coronavirus can last up to 72 hours on some surfaces, according to unpublished test results and studies. Everyone must understand that it is impossible to know whether one person is carrying the virus to another, as they may have not yet developed symptoms while passing COVID-19.
If someone is in your Community and is actively not abiding by the Executive Order, you may consider notifying the Health Department or even the police, depending upon the circumstances. Now is not the time to hesitate. This is Community effort.
Maintenance:
The New Jersey Condominium Act (N.J.S.A. § 46:8B-14), along with likely every set of Governing Documents, states that the maintenance of the Common Elements is the responsibility of the Board. The maintenance of the common elements is essential at this time. Associations are concerned that they are required to operate without staff.
No, you are not required to operate without staff. However, now is not the time to be fully staffed. The Association should continue to have janitorial staff on the premises. The janitorial staff is responsible for the cleanliness of the community. That is the goal here. You should limit your staff wherever possible. All staff members working on site should abide by “social distancing.” Janitorial staff should be at work disinfecting common areas, especially those locations most travelled.
For those staff not required to work on site, work-from-home arrangements should be made wherever possible.
Resources:
Information overflow is a real problem in the world we live in today. You can look on your smart phone, computer and tablet at any point throughout the day and find 30 different articles published in the past 24 hours relating to the developments of the Coronavirus. Some of the information is opinion, some is fact, and some is questionable. Focus on facts, trust the scientists and obtain information directly from the source. Griffin Alexander, P.C. plays a key role in providing information to the public, and we recommend the following sources:
- The Novel Coronavirus Fact Sheet. Why? It tells you everything that you need to know about the virus and precautions that resident and Association staff can take to prevent the spread of Coronavirus. All of the information here is provided directly from the CDC. You can even provide this to your residents as a guide. The information was true last week and it will remain true through the “Coronavirus Season.” Refer to the Fact Sheet below:
https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf
- Trust your Local Guidance. Check the website for your local municipality. Local health departments are filled with hardworking individuals doing their best to protect us all. Another reason to trust the information that they are providing to the public is that they are receiving that information from either (1) real-time data/experience, or (2) they are receiving that information directly from the New Jersey Department of Health.
- The CDC, WHO, or the New Jersey Department of Health. Don’t listen to an article with a catchy title that reads of little substance or misquotes. Obtain information directly from the source.
- Community Associations Institute. They are a phenomenal institution consisting of the best of the best in the industry. They have sample letters that you can send to your Community to keep them informed of efforts that the Association has taken to prevent the spread and deal with the underlying crisis of being the subject of a “Stay-at-Home” Order.
Where you obtain your information matters. Residents of your Community will ask for guidance from Management or the Board. They will look for guidance from authority, especially in a time of crisis.
Emergency Preparedness & Contact Information:
Residents will be confused about how to find the people that they need to contact. For example, a resident may leave the house and walk to the clubhouse where the on-site manager may be located to ask the manager a question. The manager may be working diligently – but from home. The resident wasted a trip while touching the same door handle that someone who is now self-quarantined touched 24 hours earlier. This could have been prevented. Provide your residents with a contact information sheet, to show them (a) you are still contacting them, and (b) they are still able to contact you. Even if a similar incident does not occur, does that same resident know what number to call? Do they have the manager’s email?
Use this time to tighten up your emergency responses. Despite the lack of relation to COVID-19, many of the steps taken relate in some way to any emergency. The Association should have a plan. If you find yourself with free time, or at a severe disadvantage under the current circumstances, take some time to tighten up your emergency preparedness. We wrote an article on emergency preparedness before this tragedy, which can be viewed below:
https://www.lawgapc.com/blog/storm-preparedness/
Confidential Information:
There is quite a bit of concern in the industry relating to the disclosure of confidential information during this crisis.
People do not want to be forced to disclose private medical information to the public. Conversely, there is a greater good to be concerned about here. How do you justify the two?
First, questioning someone’s current medical condition as it relates to COVID-19 is not questioning someone’s disability.
The Federal Fair Housing Act prevents discrimination based on handicap. Handicap and disability are terms that are synonymous. Further, the FHA draws from the definitions set forth in the Americans with Disabilities Act (ADA). The only difference between the FHA and ADA in this respect is that the ADA applies to public area. In either case, handicap is defined as:
(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment. 42 U.S.C. 3604.
The term “substantially limits” is one that is requires limitation greater than “transitory and minor.” See 29 C.F.R. 1630.2. COVID-19 is a strand of the flu. Although there are sources stating that COVID-19 is perhaps 10 times stronger than the seasonal flu, COVID-19 nevertheless, is considered “transitory.” (Higgins-Dunn & Lovelace Jr., Top US Health Official Says The Coronavirus is 10 Times ‘More Lethal’ than the Seasonal Flu, https://www.cnbc.com/2020/03/11/top-federal-health-official-says-coronavirus-outbreak-is-going-to-get-worse-in-the-us.html, March 11, 2020, last visited March 23, 2020). For this reason, an individual with COVID-19 is not necessarily handicapped. Further, a dangerous individual may be considered a “direct threat” to the community.
The Health Insurance Portability and Accountability Act of 1996 is also increasingly cited by residents, guests or others. This Act applies to the public disclosure of private medical information by covered entities. Covered Entities include:
(1) health plans,
(2) health care clearinghouses, and
(3) health care providers who electronically transmit any health information in connection with transactions for which HHS has adopted standards.
An Association is not a “covered entity” under the Act. You may ask residents, guests and others their medical condition. Those that you ask, however, are not required to answer. That being said, if you receive healthcare information and this information, to your knowledge, is supposed to remain confidential, we recommend you keep it confidential.
There is also a concern related to tort law. The resident may claim harm to reputation, or private disclosure of public facts. In either case, we recommend not making information known to the building about an individual without a reputable source (state/local/federal agency or a healthcare professional). Public disclosure of private facts and any harm to reputation based on privacy, requires that the resident have a reasonable expectation of privacy in the facts at hand. Further, there must be no legitimate public interest in being apprised of the facts publicized. The elements of the tort are Public Disclosure of Private Facts, as set forth in the Second Restatement of Torts, are as follows (emphasis added):
- 652D Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
Again, it is important where you obtain your information. If you find out about the disclosure of COVID-19 test results or quarantine from the resident, the resident is consenting to the release of that information, and with it, the expectation of privacy.
If the information comes from a credible source (not by way of rumor), such as a state, federal or local agency, or from a medical facility, the chances are that this information has been provided for purposes of allowing the Association to address an imminent threat. You relaying this information is then likely not a violation of any of the laws discussed herein, however, I would not provide the name and address of the individual. If this information is disclosed to you by a state, local, or federal government agent or a doctor, I would discuss with this individual, the responsibility of disclosure and staying quarantined.
There is a concern that if the information is not from a trusted source, and you release information pertaining to one specific individual, you may be liable for ruining the individual’s reputation. Even with that, you would be liable for the damage that you cause, albeit damages are hard to assess when relating to the reputation of an individual.
Closure of Common Areas:
Griffin Alexander, P.C. recommends that Associations recommend you take all necessary measures to prevent the spread of the virus. At this juncture, the Association should have all Common Areas closed. All gyms and theatre amenities must close in line with the Governor’s recent orders, especially. This is a worldwide effort. All residents should understand that the Associations are taking such precautions for their health and well-being. Individuals may not know whether they, themselves have Coronavirus.
Access to the Community:
Access to the Community will still have to be provided. Guests can visit family members, loved ones, and those in which they have a close personal relationship under the Executive Order. Medical Professionals and first responders must be provided with immediate access. You may consider questioning others using a Coronavirus Questionnaire found below:
https://www.chihealth.com/en/patients-visitors/coronavirus-covid-19/Coronavirusquestionnaire.html
Financials:
Now is the time to check in with your professionals. You may consider preparing a new budget, reviewing loans, and insurance policies in light of the difficult financial times that have accompanied this crisis. Associations are going through the same
Quarantine:
Many people are at work, working diligently; others are filing for unemployment, working diligently to find work. According to the Patch, approximately 15,000 in New Jersey have filed for unemployment. (Baldwin, Carly, 15,000 File For Unemployment, And Aberdeen Single Mom Is One These, Patch, https://patch.com/new-jersey/matawan-aberdeen/shrewsbury-salon-owner-aberdeen-waitress-situation-awful, March 19, 2020, last visited March 23, 2020). These are difficult times. Perhaps it is worth discovering, while we are all in quarantine, if there is a way for your Association to feel a sense of Community. Some Communities are holding open meetings by tele-conference. Others may consider Zoom calls, Microsoft Teams, Skype or Facetime to see friendly faces. Perhaps there are charitable efforts to be made while on “lockdown.” (See Crespolini, Russ, NJ Woman Seeks Skilled Sewers, Materials To Craft Hospital Masks, Patch https://patch.com/new-jersey/hopatcong-sparta/nj-woman-seeks-skilled-sewers-materials-craft-hospital-masks, March 22, 2020, last visited March 23, 2020).
The world is all one big Community Association! We are all in this together! We must work together to feel a sense of Community and a sense of safety at this time. If your Association needs legal advice, contact Griffin Alexander, P.C.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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For any questions about this blog, or to schedule a consultation with an attorney, contact Griffin Alexander, P.C. at 973-366-1188 or through our website here!