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COVID-19 and Opening Amenities Questions of Ethics, Liability, & Resident Demands

Last spring, amidst the panic and confusion of the burgeoning pandemic, condominium, co-op, and HOA communities were faced with the difficult task of deciding what to do about their shared gyms, pools, clubhouses. Almost universally, these and other popular amenities were closed as a hedge against infection by a little-known virus. Community leaders and boards of directors reported being hopeful the closures would only be temporary. Once more was known about the virus and its transmission, and then as the pandemic waned, a return to pre-pandemic life would await us.

Now, a year into the worst public health crisis in over a century, we are faced with a situation very similar to last year. While our knowledge level about the virus is higher and vaccinations are underway throughout the United States, we are still facing a second summer of COVID-19. Along the way, the pandemic has raised issues that have made learning to live with the problem even more complicated for boards and managers. Those factors include liability, cost, continued misunderstanding of the short-, medium-, and long-term realities of COVID-19, and perhaps most difficult of all to maneuver, politics.

Liability

Perhaps the greatest impediment to associations and corporations trying to develop plans to reopen their amenities in compliance with CDC and other health department recommendations is the fear of liability. A survey of insurance providers and brokers for this article indicated that insurers have taken a position against most, if not all, COVID-19 claims, stating that viral infections and whatever results from them are excluded under existing coverage and policies. This potentially moves liability to associations, corporations, and possibly even individual board members, a risk few are willing to take. Hence, there is a high likelihood that many community amenities will remain closed this spring and summer.

Joe Balzamo is the COO of AR Management, a property management firm located in New Jersey. “One of the biggest problems right now in terms of opening amenities is that insurance companies don’t cover viruses, etc., as part of their coverage,” he says. “The impact is simple: if someone gets sick and sues the association, there’s no ability for the insurer to validate the litigation. Associations would own the litigation and the claim. All the risk is on the association.”

Glen Masullo, president and managing partner with Preferred Community Management Services located in Somerset, concurs. “Legal issues are a major block to unilaterally opening pools and other community amenities. Insurance doesn’t currently cover these claims, and members of the board, association, and even vendors can be sued personally.” As concerns this coming season, continues Masullo, “the insurance issue hasn’t gone away.” 

“There are always liability concerns,” says Scott Piekarsky, an attorney with Phillips Nizer in New Jersey. “People may get injured due to the pandemic through infection. Again this year, we have the same concerns about people getting ill and the ramifications of that. Aside from health and safety and legal compliance, one big issue is what insurance companies will cover. A condominium association is a business, and you have to protect the members. There is a fiduciary duty. We are hearing now that if someone gets COVID and sues the association, insurance will not defend or indemnify. No defense and no payout, until this is adjudicated. Coverage litigation actually started last summer; we’re seeing it now, and I think we’ll see an increase in cases going forward. We may have a category of cases that get called ‘COVID-19 cases’ that will increase, and these cases will be filed in the courts.” 

Cost

Another serious issue facing boards if they decide to reopen their amenities is the cost involved with doing so. Various agencies at the state and local level have established rules for social distancing and masking; requirements often also include extra cleaning staff and personnel to observe and maintain crowd control within the amenity area. Those additional costs could make reopening a financial impossibility for some communities.

Stephen DiNocco, a principal with Affinity Realty and Property Management in Massachusetts, recounts that last year the board of health that governs some of his communities “made such difficult rules that many communities couldn’t open. In one case,” he details, “the property contained more than 1,000 residents. The regulations didn’t permit more than 20 people in the pool at one time. After one use of the bathroom, it had to be cleaned and disinfected. The children’s pool wasn’t permitted to be used at all. Many boards are saying it’s not financially practical to reopen. Rules require so much additional personnel for supervision and logistics, they can’t afford the extra staff.”

Understanding the Realities of COVID-19

Another factor in planning for the summer and beyond is the way board members and residents of condominium associations and co-op corporations understand and view the crisis. Have things changed permanently (at least to some degree, in some areas), or will this all end eventually and life return to pre-pandemic realities?

The facts on this are still unclear, but there is a growing consensus in the medical and scientific communities that COVID-19 will be with us for a long time, if not forever. While the massive campaign is underway to get people vaccinated, increasing evidence points to this virus looking a lot more like the flu than, say, polio (which thanks to a global vaccination effort was effectively eradicated in 2018) in terms of remaining a major medical concern for the foreseeable future. It’s unlikely vaccination for COVID-19 will be ‘one and done.’ Even some of the current vaccines require two doses, and with talk of new variants daily, experts are increasingly suggesting a booster shot will be needed—probably on an annual basis.

According to DiNocco, “One thing that has been in the back of people’s minds is that this is a temporary situation, and that it will end. They ask themselves, ‘How much effort should we put into it?’” He says if unit owners are thinking short-term, or even medium-term, and they don’t believe the changes required to live with COVID-19 are permanent, they’re less likely to institute rules changes that are effectively life changes, nor to spend the money to do it.

The other factor DiNocco points to is, “People don’t want to be around others who are not in their bubble, so why would we make a decision for their community that allows something that they wouldn’t do themselves right now?” He expects a lot of people to say it’s no big deal for now, and that they’re willing to accept limitations on amenity use, since they wouldn’t put themselves at risk anyway. “There isn’t much interest in reopening,” he stresses. “I’ve only received one request to reopen the gym.”

Politics

Lastly, and possibly most importantly—also sadly—unlike any national crisis before it, the COVID-19 pandemic has been politicized. Numerous sources who preferred not to give their names have stressed that the decisions about reopening, and the rules that will apply to it, are often reflective of the political culture of a particular community. There are those communities where mask wearing is required and enforced—stridently, in some cases—and those where it is rejected, facts and CDC recommendations notwithstanding. One manager described a situation where the board of the community was dominated by three attorneys, all of whom resided in the building. They pushed through a very strict policy of mask wearing, social distancing, and closure of amenities. Many residents were unhappy with the policy, and expressed as much to the board, but board members in turn asserted that any liability resulting from disobedience of the rules would fall clearly on the residents—the condo wouldn’t share in the responsibility. The prospect of this legal reality cooled the resident revolt in short order. 

In another property, the manager puts the divide into starker terms: “It’s like ‘Invasion of the Body Snatchers.’ I don’t recognize some of these people—many of whom I’ve known for years. People are actually putting their politics before their own good.”

Overall, it appears that the biggest pushback against pandemic mitigation efforts may be in over-55 communities, where residents are especially eager to return to some kind of normal, and many are campaigning for reopening, despite the risk that closer contact poses to both themselves and their neighbors. Sentiment doesn’t trump good sense, however—at least not when it comes to the legal and ethical considerations involved in managing a multifamily community, and especially not when that community is home to a significant population of more vulnerable residents. “No senior who hasn’t been vaccinated should get within six feet of anyone else,” says Masullo. “And many are having difficulty getting vaccinated. We will help residents get appointments, and in senior communities [are organizing] to do vaccines in clubhouses, etc. I tell [colleagues] that if you’re managing a senior community, you should not open amenities. It could mean millions of dollars in lawsuits. Don’t open the pool until the science tells you it’s safe.”

A J Sidransky is a staff writer/reporter for CooperatorNews, and a published novelist. 

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