- Community Associations, Legal Updates
- Indiana, Illinois
The Dilemma
Now that public awareness and information regarding the source, nature, transmission and prevention COVID19 is at an all-time high, the most frequent and important question we receive is:
“In the event of confirmation of a positive test for COVID19 within the association, what is the Board or management obligated to communicate to the association, owners, occupants, employees or vendors?”
Board Member Considerations
Preliminary, it is imperative that board members understand that, as volunteers, you are not expected to be experts with respect to everything – especially the coronavirus pandemic. This is why it is so important for a Board to rely on its specific professionals – management, attorneys, accountants, engineers, contractors, etc. Relying on the Association’s professionals establishes a basis from which to defend potential claims of breach of fiduciary duty in the future.
If board members or management receive specific “who, what, where, when, why” questions, you should refer those people to federal, state or local public health officials. In attempting to answer these questions from owners, board members or managers may mean well and are simply trying to help. From a liability standpoint, however, it’s important to avoid offering answers upon which owners may rely only to later find out that the suggestions were unfortunately incorrect.
The Duty
While the Board’s duty is less than “crystal clear,” in the event the Board learns that a resident/staff member at the Association has contracted COVID-19, it would certainly be prudent to advise the other residents, and to encourage them to contact their own medical provider and to follow their own medical provider’s advice as warranted
Public health officials will provide the Board and management with a list of steps necessary to respond to a positive test in a multi-family dwelling building(s). However, unless otherwise specifically instructed in writing by an authorized public health official, neither board members nor management should disclose the name, address or other confidential information regarding the confirmed positive test or exposure.
Board members or management may receive significant pressure from owners or occupants demanding specific, even confidential, information about any tests – maybe even legal threats. In that event, the board and management must be diligent and disciplined. Of course, you should also immediately contact the Association’s legal counsel so that we can assist the Board and management in navigating this significantly delicate situation.
Public Health Officials
Practically speaking, it is highly likely that public health officials will disclose the existence of a positive test to individuals whom they believe are at risk. In fact, the public health officials may ask the Board and management to assist in the notification and disclosure process. That’s fine – but, leave that responsibility up to the appropriate authorities.
Finally, specifically ask public health officials what information or steps the Association or management need to take regarding notification, remediation and further prevention. This may be important in the future if the Association needs to establish that they took reasonable steps to address this situation.
Clearly, all media formats are currently saturated with important and helpful information concerning the COVID19 pandemic. But community association board members have a higher, unique duty to the owners within their association to take reasonable steps in addressing the evolving phases of this public health crisis.
If KSN can answer any legal questions for or assist your Board, do not hesitate to contact our law firm. Please call 855-537-0500 or visit www.ksnlaw.com.
Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.
Please note the material contained in this article is for educational and informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained in this article. You should not act on the information discussed in this article without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information in this article, the law can change quickly. Accordingly, please understand that information discussed in this article may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed in the article law at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the article, or the accessibility of the article generally. This article may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2020 Kovitz Shifrin Nesbit, A Professional Corporation.
