Beaumont Tashjian Law Blog

Friday, July 10, 2020

Pandemic Awareness: Helping Boards be Adaptable to Government Orders and Future Health Crises

As the novel coronavirus (COVID-19) pandemic remains very much a part of our lives at the time of this publication, community association leaders are undoubtedly straining to maintain a sense of normalcy while transitioning to virtual meetings, new common area rules and restrictions, sanitization and other health/safety protocols, etc. Complicating matters further, state and local health officials seem to be revising their pandemic guidelines, recommendations and/or mandates weekly (if not daily). Government orders are regularly either tightened or relaxed, depending on the rise and fall of the infection rate. These reactive responses are difficult to keep track of for community association boards and managers (and attorneys!). 

While the infection rate and government responses to the statistics are unpredictable, what can be controlled is the association’s preparedness for all scenarios. Whether it is COVID-19 or another epidemic or pandemic virus in the future, mitigating the level of uncertainty for the homeowners and residents will not only bring a sense of calm during those stressful times, but help boards and managers be proactive, not reactive. As we saw in many instances, swift action taken by boards in response to California’ state of emergency caught many homeowners and residents off guard, causing confusion and frustration, understandably.

To alleviate this, boards should implement policies and procedures related to epidemic disease and pandemic responses. Boards are generally charged with the obligation of promoting the health, safety and welfare of the association’s residents. This includes adopting rules to make way for same. A pandemic response policy or adopted protocols would give homeowners and residents advanced notice of how their membership privileges may be impacted by future epidemics or pandemics, while giving boards and managers the clarity they need to meet their fiduciary and other obligations.

For example, at what point should boards implement enhanced cleaning/sanitization procedures? When should boards shut down common areas and generally high-traffic facilities (i.e., pools, gyms, etc.)? Strong rules would define a phased and measured approach, depending on extent of the health crisis:

  • Pre-pandemic (i.e, the World Health Organization [“WHO”] has reported an epidemic, though a pandemic has not been declared): Here, the board may consult with legal counsel, but implement fewer, if any, major changes to operations;
  • “Phase 1” (i.e., the WHO has declared a pandemic, but cases have not yet been confirmed in your county or region): Here, the board may consider implementing procedures for screening visitors, requiring or recommending facial coverings to be worn in common areas; encouraging or requiring self-isolation if resident has traveled to an affected region of the country or globe, depending on health officials’ recommendations, etc.;
  • “Phase 2” (i.e., the WHO has declared a pandemic, and cases have been confirmed in your county or region): Here, boards may implement stringent procedures depending on health officials’ recommendations and/or local government orders, such as closing common area facilities or implementing reservation procedures, creating notice or disclosure protocols for when a resident has tested positive for the pandemic virus, prohibiting non-essential construction work, etc.

The foregoing serve as just examples for a proactive epidemic or pandemic response policy. In any event, clear guidance for the community and effectively outlining the board’s duties to respond to future health crises and abide by government mandates will save your community unnecessary hardship and confusion, should those uncertain times resurface. 

Through such a rule change/policy or notices to the community, boards should also be reminding homeowners of: their assessment obligations (during a pandemic or otherwise), the board’s right to withdraw from reserves to implement pandemic protocols or otherwise, if necessary, and the board’s authority to adopt emergency rule changes to respond to a health crisis, etc.

Ahead of adopting such a policy, boards should also be sure to work with their association’s accountants, reserve specialists and other financial experts to account for any budget revisions or considerations, as we move forward in a post-COVID-19 world. Being proactive, working with and relying on the experts, and implementing necessary protocols and rules will ensure the community’s preparedness, should the unfortunate event of a pandemic or epidemic rear its ugly head again!


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