We are in a challenging time. In just a few weeks, the Coronavirus (COVID-19) has upended life as we knew it. As a result, all of our communities are wondering what measures they should take to prevent the spread and keep their residents as safe as possible. With confirmed cases growing throughout the country with each passing day, board members and professionals should enact policies that bolster the common good and hopefully will shorten the effects of COVID-19 on our lives. Becker has prepared this guideline to provide helpful suggestions and recommendations to our clients in these uncertain times. All recommendations contained herein are as of the date of this memorandum and may be subsequently affected by changes in recommendations from federal, state, county and local authorities.
Critical Source Recommendations
Becker recommends that all communities remind their residents to follow the suggestions of the Center for Disease Control (CD), the U.S. Department of Housing and Urban Development (HUD), the New Jersey Department of Health, and your local county and municipal health departments. It is important to remember that the suggestions and recommendations from these sources may change on a daily basis, so it is important that everyone stays up to date.
NJ Department of Health: https://www.nj.gov/health/
Cleaning and Social Distancing
Becker recommends that communities enhance cleaning of all common areas and facilities, particularly those high contact areas such as doors and door handles, countertops, elevators and elevator buttons, light switches, restrooms and lobby areas. The CDC and New Jersey Department of Health have posted recommendations for enhanced cleaning.
Residents should also be encouraged to following the social distancing policies recommended by the CDC and New Jersey Department of Health.
Residents, Guests and Other Visitors
Community residents cannot be restricted access to the community, even if they have been diagnosed with the coronavirus or have been advised of the need to self-quarantine. Residents are entitled to reside in their residence, unless state or local authorities determine otherwise. If a resident notifies you that they have coronavirus, you should contact your municipal, county and state health authorities so that they are aware that a resident in your community has tested positive. If a resident who has tested positive for coronavirus is seen out of their unit, you should notify your municipal, county and state health authorities and request that they immediately take any actions they may deem necessary.
While you can notify residents that a member of the community has tested positive for coronavirus, has been ordered to self-quarantine, and/ or is otherwise electing to self-quarantine, you cannot identify the resident in quarantine by name, address or provide any other personal information that could identify the resident. You should not notify residents that a member of the community has been diagnosed with coronavirus unless you are able to reasonably confirm the diagnosis is true from the resident directly, a co-occupant living with the resident or a public health official who has notified the Board or management of such diagnosis. In no circumstance should you rely on rumors or unofficial sources.
Guests and other visitors to the property may be screened to determine if they pose a risk to the community. A “Guest and Visitor Registration” questionnaire can be accessed here for use in your community. If a guest or other visitor to the property answers “Yes” to any of the questions, they should not be permitted access.”
Open houses, as well as moving into and out of the community and large deliveries, are not recommended, particularly in mid-rise and high-rise communities.
HIPAA and Requesting Coronavirus Information From Non-Residents
Some of our clients, particularly those in mid- and high-rise buildings, have asked whether they can require guests, contractors and visitors to complete a Coronavirus screening questionnaire before admitting these people to the building. The typical questionnaire requests information about contact with others with the virus, current or recent experience with symptoms related to the virus and whether there was recent travel to other countries known to have higher incidences of the virus. A copy of such a questionnaire can be found on this site .
Some people, including physicians, claim that the questions asked in the questionnaire violate privacy rights under the Health Insurance Portability and Accountability Act of 1996, or “HIPAA” for short. There is quite a bit of misinformation about the protection offered by HIPAA and about “privacy laws” in general.
The U.S. Department of Health and Human Services (HHS) states concisely on its website the purpose of the HIPAA Privacy Rule as follows: “The Privacy Rule controls how a health plan or a covered health care provider shares your protected health information.” Essentially your health insurance company, your physician, a hospital or anyone else that may maintain your health records may not disclose them without your permission, subject to certain exceptions such as a governmental need for records. These health information record-keepers are known under the HIPAA law as “Covered Entities.”
Parties that are not Covered Entities are not prevented from asking a person about his or her own medical condition. A person may, of course, decline to answer the questions. But if the association has a policy that prohibits the admission of non-residents unless the questionnaire is completed, the association has the right to decline admission. Despite this, common sense must prevail. If an EMS employee, fireman or police officer requires admission to the building to perform their emergency function they should not be slowed by seeking the completion of a questionnaire. Similarly, physicians or other medical professionals providing healthcare services to a resident of the building should not be denied admission though identification may be requested.
At the end of the day an association’s duty is to its owners and residents. Among those duties is, to the extent practicable, making the common elements safe in light of possible contamination by others. All of the governmental health authorities are stressing the need to “level the curve” of increasing Coronavirus infections. Doing so not only benefits the residents of a building, but benefits society in general by reducing contamination. The association has no legal duty to contractors, guests and visitors to admit them without completion of a questionnaire intended to test any increase exposure to the virus.
Access by Medical Professionals and Caretakers
Becker recommends that access to residents by essential and necessary medical professionals and caretakers be permitted and not otherwise interrupted, particularly with respect to emergency medical services. The community should not interfere with any provider of emergency medical or emergency response services. For the medical professionals and/or caretakers who visit the community on a regular or routine basis, you can request that they complete the “Guest and Visitor Registration” questionnaire. If the medical professional and/or caretaker answers “Yes” to any of the questions, and the service which they are providing is not emergent or necessary for the immediate preservation of the life and/or safety of a resident in the community, they can be denied access and the resident be informed that alternative arrangements for service need to be provided.
Closing Community Facilities
New Jersey has mandated that all gyms and fitness centers remain closed until further notice, this includes any gym located on your Association’s common property. Becker recommends that all common facilities, such as but not necessarily limited to, clubhouses and amenity spaces be temporarily closed until further notice. Communities should consult with their local county and municipal health departments, as well as their legal counsel, before re-opening common facilities.
While New Jersey has mandated that all gatherings of persons in the state be limited to 50 persons or fewer, with few exceptions, the federal government recently recommended that gatherings of persons be limited to 10 persons or fewer. (See, CDC’s 3/16/2020 Guidance “15 Days to Slow the Spread”) Becker recommends that gatherings of persons in your community be limited to 10 persons or fewer, except in emergency situations.
Community Related Services and Construction Work
Community related services, such as concierge, porter, garbage pick-up and emergency services, should continue with enhanced protocols for cleaning and social distancing recommended by the CDC and New Jersey Department of Health.
Becker recommends that all interior construction work, including non-emergency repairs, renovations, decorations, and alterations be temporarily prohibited until further notice. This prohibition is recommended to reduce the risk of spreading the virus to members of the community from outside contractors and individuals who your community has no control over. Exterior Association work, like landscaping, roofing and cladding, should continue as long as the contractors are exercising the CDC and New Jersey Department of Health recommendations, including social distancing, unless further guidance recommends otherwise.
Staffing and Operations
Management and concierges may continue to provide services in your community, but should be instructed to follow the enhanced cleaning and social distancing recommendations of the CDC and New Jersey Department of Health. The community should be prepared for the potential shut down by management and concierge services, which may at some point be required by the state or other governmental authorities or a determination made by the individual company to temporarily cease operations. The community should also be prepared for the following possibilities:
a) Suspension of non-essential administrative functions
b) Delays in obtaining general account information
c) Delays in the posting of account payments
d) Delays in the processing of non-essential administrative tasks
e) Other delays or complete suspension of services by management, concierge and vendors.
Residents who fit the criteria for self-quarantine, as identified by the CDC or New Jersey Department of Health, or who have been diagnosed with coronavirus, should be asked to notify the board and/or management so that appropriate precautionary and preventive measures can be implemented. Residents who are self-quarantining should be advised not to leave their residence, maintain social distancing if they need to leave their residence and follow the guidelines posted by the CDC and New Jersey Department of Health with respect to other occupants of their unit. All occupants of the unit should similarly be encouraged to self-quarantine.