November 14, 2020 by Steve Horvath | Last Updated: November 15, 2020

Despite a myriad of maintenance, repair and replacement, COVID-19 has undoubtedly become the hot topic of 2020 in nearly every residential multi-family community across the world. Relatively frequent guidance updates from multiple sources including the CDC, WA State governor's office and our local King County and Seattle governments, some of which do not perfectly align, create a minefield of both regulations and guidance to navigate. Since mid-March, the residential community response to COVID-19 has been brisk, but varied. Board members and management companies are at a crossroads of literature, regulations, guidance and best efforts to address owner and resident concerns for common amenities impacted by virus precautions.

Stating in April 2020, Governor Inslee issued Proclamation 20-51 eliminating requirements for community associations like condominiums to hold meetings in person based on provisions in RCW 24.03 (Nonprofit Corporations Act) and RCW 64.90 (WUCIOA). Many associations did not already have language in their governing documents requiring in-person meetings, so this loosening of requirements was in some cases a reminder of the ability to meet virtually. Some associations managed to arrange virtual annual meetings close to their usual dates while others pushed these important events several months out while grappling with the realities of COVID-19. The push to meet virtually has enhanced general meeting attendance at some organizations and provided opportunities for increased transparency.

Meetings aside, COVID-19 has presented a host of other challenges and raised some important questions that still circulate in condominium conversations. Below are several of these question and some answers.

  • What steps should occur when you know a resident is sick?

    • King County has done a fantastic job of publishing easy to understand guidance for multi-famiily residential buildings. Here are some important takeaways from that publication:

      • It is NOT necessary to alert residents about possible cases.

      • If the identify of a case is known, visitors and staff should NOT enter the unit.

      • If you believe someone in your housing community has or may have COVID-19, DO NOT share their personal health information.

  • Can you penalize failure to wear a face covering in your building?

    • After one of Governor Inslee's proclamations made face coverings mandatory in most circumstances within WA State, several associations started imposing fines on residents who did not appear to comply. Attorney feedback from more than one organization has stated such fines are actually illegal.

  • Under what conditions can you operate your fitness center/gym?

    • BREAKING NEWS: Governor Inslee issued an updated Proclamation 20-25.8 on November 15, 2020 that implies all fitness centers/gyms are closed to indoor operations.

    • This is undoubtedly one of the hottest COVID-19 topics of them all. An August 10th press release from Governor Inslee's office contained this FAQ which contains yet another link to "Phase 2 and 3 Indoor Fitness and Training COVID-19 Reopening Requirements" last updated on August 26th, 2020. Long-story short, requirements are as follows:

      • Phase 2: 300sqft per person; Phase 3: 200sqft per person; Large Facilities (>12,000sqft): limited to 25% occupancy based on fire code.

      • Users must wear face coverings unless engaged in "strenuous exercise."

      • The requirement to staff fitness facilities means that a staff member must clean equipment after use.

      • If no staff are employed to constantly monitor the facility, a reservation system is required to maintain capacity compliance.

  • To what degree are Board members and management companies responsible for the health of their residents? Can an association be successfully sued for providing an environment that allowed the transmission of an infectious disease?

    • COVID-19 is one of many infectious diseases that could present itself within any multi-family residential property. Few, if any, condominium associations ever considered their responsibility for infectious disease until such a high-profile global pandemic arrived. In WA State, condominium Board members owe a duty of care to their association and, to a lesser extent, also to the public at large (see Page 132 of the 2019 CondoLaw Handbook). Management companies that represent condominium associations may have limited legal liability based on specific contract language.

      • Duty of care requirements are largely based on common sense and acting in good faith which often boils down to following the law and not engaging in willful misconduct. From this perspective, condominium associations and their Board members would be well advised to follow the minimum health and safety requirements published by WA State and King County Public Health.

    • While only an actual court case could prove the relative success of a lawsuit related to any infectious disease, feedback from HUB International is essentially that proving the origin of an infectious disease would prove difficult and that while insurance policies do not cover infectious disease, HUB would go to bat for its clients.

  • What policies and procedures should be implemented?

    • Associations have enacted a large number of policies and procedures related to COVID-19. Some of these are implementations of WA State and/or King County Department of Health requirements and others take it to another level. Here's a list to consider:

      • Signage throughout properties that include reminders for COVID-19 policies and procedures

      • Enforcement of government mandated requirements for employees and contractors

      • Face Coverings

      • Social Distancing with specific areas such as the concierge desk taped off to reinforce 6' distancing

      • Increased disinfection of high-touch surfaces and hand sanitizer stations located in common areas

      • Closure and/or capacity limitations for common indoor and outdoor (courtyard and rooftop) amenities

      • Elevator protocols limiting occupancy. Some organizations have increased elevator cab air exchange by adjusting fan speed.

      • Updated protocols for delivery and retrieval of packages and meals. Some of these protocols differ substantially from having delivery persons remain outside a property to direct unit door drop-off. Some policies even at the same organization differ based on grocery delivery vs. meal delivery vs. package delivery.