Beaumont Tashjian Law Blog

Monday, June 7, 2021

COVID-19 UPDATE

COVID-19 UPDATE

As you have heard, effective June 15th, the State of California and Governor Newsom have confirmed that restrictions and protocols related to the pandemic have been lifted. This means that counties are no longer placed into “tiers” based upon their COVID-19 case rates and hospitalizations, and very limited mitigation measures are in place. Specifically, there are “no restrictions” for capacity or physical distancing, with respect to most venues. In other words, the association’s fitness center, clubhouse, swimming pool area, etc. may reopen fully, without limitations.

Guidance and recommendations may certainly change over the next several weeks, and beyond that, given that the Governor has also stated that he would not end the “State of Emergency”, thus reserving the possibility that restrictions are reinstated, should hospitalizations increase, etc. Additionally, restrictions still remain in place at least through October 1, 2021, for large venues and “Mega Events”. Notwithstanding, capacity and social distancing requirements no longer apply to smaller venues and facilities, such as those within the association.

Note that the State has aligned its mask guidance with that of the CDC. The California Department of Public Health (“CDPH”) provides that “masks are not required for fully vaccinated individuals, except in the following settings where masks are required for everyone, regardless of vaccination status:…”. (Emphasis added.) The CDPH goes on to describe healthcare settings, correctional facilities, homeless shelters, public transit, and indoors at schools, “public settings and businesses” such as retail, restaurants, theaters, family entertainment centers, “meetings”, and state and local government offices serving the public.

It is certainly not apparent that the association’s facilities fall under any of these categories where masks are required, regardless of vaccination status. In any event, per the CDC, unvaccinated individuals should be encouraged to wear a mask. However, despite the CDC recommendation that unvaccinated individuals wear a mask, the Association should not condition use of the common area amenities on proof of vaccination. This requirement would expose the association to significant liability. A restriction limiting use of the common area facilities to only those who can show proof of the vaccine would expose the association to claims of discrimination and various other challenges.

Requiring proof of vaccination will also create separate classes of residents, those with and those without. This, again, creates risk of discrimination claims as well as increasing the risk of harassment and the creation of a hostile living environment, both of which are forms of discrimination under the Department of Housing and Urban Development’s regulations.

Finally, attempting to oversee, verify and regulate access to facilities, based on vaccination status, would be a tremendous and unnecessary burden on the board and the association’s staff. At this juncture, “businesses” can apparently enforce indoor masking requirements against patrons by implementing a vaccine verification system or requiring everyone to wear a mask. Alternatively, they can allow individuals to “self-attest” that they have been vaccinated, and that self-attestation would include the individual simply not wearing a mask while inside the business’s facilities, so long as signage is posted advising unvaccinated individuals to wear a mask.

All in all, posting signs in or around the common area amenities recommending masks for those that are unvaccinated is a simple and recommended alternative, as an added layer of protection. Likewise, advising members and residents to use the facilities at their own risk may add another layer of protection for the association, but is not required. Note that posting signs or information in the common area (and/or in a newsletter) is not ironclad protection against any claims a resident brings, if they contract the virus while using the common area facilities. However, proving that an infection occurred and same is the result of the association’s negligence or malfeasance would be extremely difficult.

If the association employs on-site staff, the association should align itself with Cal/OSHA’s standards, which, as of today’s date, require all indoor workers to continue to wear masks, unless working alone in a room/office or eating/drinking, and/or if the team member cannot wear a face covering due to a medical or mental health condition or disability. The 6-foot physical distancing requirements also remain in place for workers. However, Cal/OSHA will meet on June 17th to confirm this guidance.

Lastly, if the association no longer intends to provide sanitizer and/or provide a high frequency of cleaning at the facilities, the members should also be informed of this, so there is no expectation that these services will continue to be offered/performed.

Boards should reach out to legal counsel with questions or concerns about the association’s best approach with regard to reopening the facilities, regulating mask-wearing, etc. Please also be sure to continue to check in with legal counsel as time goes along, given that masking requirements and other restrictions may still not be a thing of the past, as new facts and orders at the State and County levels come to fruition.

 

CODE OF CONDUCT

As the COVID case count in California continues to decline, restrictions are easing and we are “returning to normal”.

Adopting a Code of Conduct is a useful tool for the Board to remind community members of the acceptable conduct in the common areas and at Board meetings. For example, to encourage orderly and expeditious meetings, a Code of Conduct should address who is entitled to attend meetings (i.e., legal owners) as well as the appropriate manner for homeowners to address the board during homeowner forum. If the board is interested in adopting a Code of Conduct, please reach out and we can provide you with more information and the cost to prepare same.

REQUEST A QUOTE

 

COMMUNITY ASSOCIATION MANAGEMENT INSIDER

Senior Partner, Jeffrey A. Beaumont, Esq., was interviewed on Community Association Management Insider. See the links below to read the full stories:

Owners’ Individual Security Lighting: Yay or Nay?

https://www.communityassociationinsider.com/owners-individual-security-lighting-yay-or-nay/?access_code=32577

Short-Term Rentals Don’t Violate Single-Family Residence Restriction

https://www.communityassociationinsider.com/short-term-rentals-dont-violate-single-family-residence-restriction/?access_code=54799

 

UPCOMING EVENTS

CAI-Coachella Valley Chapter - June Educational Program & Virtual Mini Trade Show

Partner, Lisa A. Tashjian, Esq., will be speaking at CAI-CV's June Educational Program & Mini Trade Show on June 18th at 11:30 a.m. via Zoom along with speakers Jolen Zeroski, CIT Bank and Michael Graves, SCT Reserve Consultants. The panel will present "Assessments, Reserves, and Loans, Oh My!" and will cover the following topics:

  • Special Assessments
  • Borrowing from Reserves
  • Loans from the above

There is no cost to attend. For more information and to register online, click the following link: https://www.cai-cv.org.

 

CAI-CLAC's Buck a Door or More

Senior Partner, Jeffrey A. Beaumont, Esq., will be on a panel of guest speakers at CAI-CLAC's "Buck a Door or More" program on June 24th at 12 p.m. via Zoom. The event will cover the following topics:

  • What CAI-CLAC is, and who they are
  • Successful fundraising stories ideas
  • How to seek board approval for a Buck A Door annual donation
  • Buck A Door fundraiser – where the donations go
  • How to share Buck A Door with Management Companies and Community Managers

For more information and to register online, click the following link: www.caiclac.com.

 

CAI-Channel Islands Chapter's Red, White & Blue Community Faire

Senior Partner, Jeffrey A. Beaumont, Esq., will be speaking at CAI-CIC's Red, White & Blue Community Faire on June 29th at Spanish Hills Country Club, along with Sean Allen, Esq., Roseman Law, APC. They will discuss "Dealing with Conflict in your Community." For more information and to register online, click the following link: https://cai-channelislands.org.



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