Beaumont Tashjian Law Blog

Friday, September 25, 2020

What Actions, If Any, should be Taken When a Resident Tests Positive for COVID-19?

Undoubtedly, the novel coronavirus (COVID-19) pandemic has interrupted the normal routines and operations of associations and their boards and management. While state and local health officials' orders may be lifted or relaxed (or tightened in some cases), depending on the rise and fall of the infection rate, we can expect many of the last several months' changes to association operations to stay intact for some time. The board's and management's due diligence and consideration for how to mitigate the possible transmission of the virus within their communities will continue to be relevant, even once virus related orders are completely lifted.

With this in mind, a common question that boards and managers might have is, "What do we do if there has been a suspected or confirmed diagnosis of COVID-19 or some other communicable disease within the community?”

At the outset, given the unprecedented nature of this pandemic, and the health and safety risks posed by COVID-19, the board is entitled to require members and residents to inform the association (via phone or email) if in fact they have contracted or tested positive, or have traveled to what health organizations (the CDC, WHO or others) might consider a "high-risk" location. Note that while boards must be sensitive to confidentiality and privacy, associations are not subject to the privacy protections in the Health Insurance Portability and Accountability Act (HIPAA). These protections apply to healthcare providers only, such as doctors, hospitals, pharmacies, dentists and the like.

"POSITIVE" COVID-19

If confirmed, the association should conduct a phone interview with the resident, asking: a) When they in fact tested positive and when they began engaging in self-isolation, if at all; b) Where they have walked within the community (i.e., elevators, parks, fitness center, etc.); and c) If they have been in close contact with another resident or personnel of the association within the last fourteen (14) days since exposure (or whatever length of time the virus/communicable disease is considered alive and infectious, pursuant to health officials recommendations).

Additionally, the board should consider sending a mass communication to all homeowners and residents, informing them of the confirmed case within the community, without divulging any personal information of the resident. While confidentiality should be maintained in the mass communication to the entire community, it may be reasonable in some situations, especially for senior communities, for the association to divulge to all residents of a particular floor/building cluster that there has been a confirmed ease on their floor or in their building cluster. Going any further exposes the association board and management to liability claims. Remember, all residents should assume each have the virus; thus, all residents should be required to social distance, wash their hands and wear masks.

The resident should be reminded again to practice self-isolation, and he or she may be required to schedule garbage pickup, dog walks, or other activities which may impact the community as a whole. Specifically, and especially in high-density communities, it is reasonable for the resident to be required to contact management at least thirty (30) minutes prior to leaving his/her residence, so that management can make arrangements to clean/disinfect the common areas after his/ her use or walk-through. The resident should also be required to wear a mask and gloves when in the common area. It is recommended that the resident be required to sign a privacy authorization form, which outlines, among other things:

  • What information the association management will be gathering and divulging to residents, in the interest of health and safety and the common welfare of the community;

  • What the resident's notification requirements are for leaving the unit, using association facilities (i.e., elevators), etc.;

  • How the resident will interact with the board, management, staff, etc. (e.g., how packages/deliveries will be handled).

"HIGH RISK” RESIDENTS, WITHOUT AN OFFICIAL DIAGNOSIS

If a member or resident has come into contact with someone who has tested positive for COVID-19, but has not yet been diagnosed, he or she may be considered "high-risk", and should be asked to self-isolate for a period of fourteen (14) days, as well as keep the association apprised as to their condition periodically and beyond the fourteen (14) day incubation period. The resident should be required to only enter common areas for ingress and egress and for essential services (i.e., medical reasons, shopping for groceries, etc.).

Note that these procedures by and large hold true for infected staff members and guests of the community. Determining the date of infection and locations in the community that the individual had contact with is essential, in order to engage in the foregoing notice protocols, as well as thoroughly sanitize and disinfect the common areas. The staff member or guest should, similarly, be asked to practice self-isolation for fourteen (14) days before returning to the community. Staff, specifically, may be asked to provide the association with a negative diagnosis from a testing facility, depending on the severity of his/her illness and likelihood of contact with other members in the community; note though, the CDC recommends the time-based quarantine approach, because sometimes tests will still show positive, even if the person has recovered.

All in all, 2020 has caused our community leaders to rethink how business and operations are handled. Many of the changes we are all working through are either uncomfortable or simply not feasible to implement. With the advice of legal counsel and upon the recommendations of public health officials, it is critical to determine which, if any, of the foregoing procedures are necessary and practicable to implement, based upon your community's unique needs. Boards and managers should get ahead of these issues by establishing clear guidance early on, before infections are confirmed. Be proactive and stay safe.



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