By Michael Miller, Attorney, Miller Harrison LLC
Navigating COVID-19 for many of us has been a challenge. Cases are on the rise, while government leaders try to balance the community’s health, worry about the economy, and respect to individual autonomy. Community associations face similar challenges, and association boards are forced to make tough decisions that directly affect their communities.
In response to growing concerns regarding legal responsibilities arising from COVID-19, the Utah Legislature passed SB3007, to protect business owners and operators from civil liability related to injury related to COVID-19 exposure. However, this law’s exceptions may make it infeasible for associations to benefit from these legal protections. This article focuses on SB3007 and its application and limitations to community associations. Here is a link to the full text of SB3007: https://le.utah.gov/~2020S3/bills/static/SB3007.html
How does SB3007 protect community associations?
SB3007 extends liability protection to a broad definition of “persons” that includes individuals, associations, corporations, and any other organization or entity. The use of this definition means that SB3007 is likely to protect community associations.
With a few exceptions discussed below, community associations are “immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the [community association].”
What are the limitations of the protections of SB3007?
Under SB3007, a community association is not protected from liability for COVID-19 when there has been an intentional infliction of harm, willful misconduct, or reckless infliction of harm.
Intentional infliction of harm occurs when the person acting is aware that their conduct is reasonably certain to cause harm. Willful misconduct is the intentional doing of a wrongful act or intentional failure to act without just cause or excuse, knowing that injury is the probable result.
Reckless infliction of harm occurs when there has been a gross deviation from the standard of care that a reasonable person would have taken under the same circumstances.
In addition to the standards of care set out by SB3007, association board members have a duty of reasonable care over common areas. The law generally recognizes that a standard of reasonable care involves making informed decisions in consultation with applicable expert recommendations and guidance as well as compliance with governing regulations.
What standards apply to my association’s common amenities and facilities?
COVID-19 guidelines issued by federal, state, and local agencies should be incorporated into enforceable and monitored rules when opening any common area or facilities. Currently, Utah has issued “Yellow” or low risk phase guidelines for most of the State, which include the following:
- Social gatherings are limited to groups of 50 or fewer (depending on size of area)
- A minimum of 6 feet of social distance between persons is maintained
- Face coverings are to be worn in public settings whenever possible
- Stay 6 feet away from others
- Face coverings worn in settings where other social distancing measures are difficult to maintain
- Social interactions in groups of 50 or fewer (depending on size of pool)
- Pools are opened at a capacity that enables 6’ social distance to be maintained at all times
- 6’ social distancing is maintained on pool deck and in pools
- Maintain signage that encourages social distancing guidelines to be met at all times
- Patrons of different households must maintain 10’ of distance at all times
- Make chemical disinfectant supplies available throughout the establishment and post signs encouraging patrons to thoroughly disinfect equipment after use
- Opened at a capacity that enables proper social distancing (10’ among people of different households)
Playgrounds and Children:
- Increased cleaning and hygiene regimen
- In-person interactions between children are limited to individual households and those who have been following recommended distancing and hygiene guidelines.
(Please check with your local county for any deviations from the foregoing guidelines.)
The biggest challenge for most community associations is that they do not have individuals hired to monitor common area facilities to ensure that such facilities and all facility patrons are in compliance with the foregoing recommended guidelines. Without such monitoring, a community association may not be able to assert that they have exercised reasonable care, which would preclude the association from the protections afforded by SB3007.
It is recommended that associations seek guidance from their legal counsel regarding other COVID-19 liability factors such as applicable liability insurance exclusions, defense costs in COVID-19 litigation, and the use of waiver and hold harmless agreements.