By Azra Taslimi, Altitude Community Law
The good news is that there is a COVID vaccine, the bad news is that COVID is still around and it will take time before we as a community vaccinate enough people to the point where herd immunity kicks in. While information changes daily, at this point in Colorado, all people who want a vaccine are able to register and get one. Which leads to questions from Associations about whether facilities can be opened, and how to treat people who have received the vaccine versus those who have not, especially as it relates to residents making use of the common elements like the gym and pool. While definitive answers are hard to come by, we can offer guidelines as to what the Associations should and should not do as the country surges forward to vaccinate the population.
The first question is whether Associations can now open their facilities safely and without the risk of litigation. While there are legal arguments in favor of opening up and returning to the norm, we advise against doing so. The main reason is that there are concerns about the effectiveness of the vaccine and its limited availability those under 16 years of age.
While we know that the vaccine can help prevent serious symptoms of the virus, studies do not yet support that the vaccine prevents the spread of transmission. We also do not know how long the vaccine lasts. Pfizer’s ongoing trial indicates that the company’s vaccine remains effective for at least six months - leading to the idea that the vaccine is not good forever and it’s quite possible that additional shots may be required to maintain the protection. If that wasn’t enough, there are new strains of COVID and it remains unclear/unknown whether the current vaccine is fully effective against the new strain.
In early January of 2021, the United Kingdom went into another lockdown based on the new, and what scientists are calling the more contagious strain of COVID-19. Germany, as of April 26, 2021, implemented a lockdown to curb a third wave of infections based on the new strain of COVID. Earlier this month, a member of President Biden’s coronavirus advisory board warned that the new strain of COVID infects children more easily than previous strains. Given that a vaccine is not yet available to children, the prospect of a new strain spreading through children remains a serious concern.
Despite the continued unknowns pertaining to the virus and the vaccine, Associations are facing extreme pressure from homeowners to open up the facilities. For homeowners, the virus scare seems to have dissipated and they want to see life return back to normal, especially as more and more of them become vaccinated. As a result, it is expected that more Associations will be opening up the facilities this year than last year. However, the general consensus amongst HOA counsel is that it is safest for Associations to keep their facilities closed for now. From a legal standpoint, the litigation consequences of opening facilities are the same as they were last year.
The biggest reason that attorneys are advising Associations to keep their facilities closed is due to the lack of insurance coverage for claims based on transmission of a disease. This means that if a resident was to bring a claim against an Association for having contracted COVID as a result of using an Association maintained facility, the Association would be looking at an out-of-pocket cost to the tune of hundreds of thousands of dollars to defend against the claim. Even if the court was to find no liability on part of the Association – simply to defend against the claim would be a huge cost for the Association. This is different than other suits where Associations can simply submit the claim to insurance, pay their deductible and have insurance bear the remaining cost of the litigation.
On the other side, Boards have advised that homeowners have threatened to bring claims against the Board members for breach of fiduciary duty should they keep the facilities closed. Therefore, Boards feel like they are facing litigation from both directions. While that may be the case, claims for breach of fiduciary duty by board members would generally be covered by insurance. Therefore, if Boards had to make a choice as to which litigation to take on, the preference would be for claims that are covered by insurance as opposed to the ones that are not.
Earlier this year, HB21-1074 was introduced by Mary Bradford(R) to provide immunity for entities such as restaurants, stores, or homeowners from Covid-19 claims so long as they are following public health guidelines. In essence this bill would have protected associations from legal claims if they were to open their amenities to the homeowners. Unfortunately, as of March 11, 2021, the bill had been postponed indefinitely.
Should Associations decide to move forward and open the facilities, the next concern is whether Associations can make vaccines contingent upon use. Since Associations would be legally obligated to have exceptions for certain unvaccinated individuals and must allow them access to the facilities, the “vaccinated-only” rule would simply be rendered ineffective.
Vaccines are not available to anyone 16 years old and younger. Therefore, an Association’s attempt to keep children from using the pool could lead to claims against the Association for familial discrimination under the Fair Housing Act. Associations would then need to have exceptions for all individuals for whom a vaccine is not available. Associations would also have to create exceptions for individuals who are prevented from getting the vaccine due to medical reasons as well as provide an exemption for those requesting it for religious reasons. Therefore, unvaccinated people would have to be allowed into the pool.
This creates concerns about giving residents a false sense of security - that using the facilities with only vaccinated people will keep them safe from contracting the virus. However, given that unvaccinated people must be allowed into the facilities and studies do not show that the vaccine prevents the transmission of the virus, the risk of spread remains just as much a concern.
An elderly person who has been quarantining since last year and is unable to get the vaccine due to medical reasons, finally decides to use the pool because they believe it will be safe since everyone who is using the pool is vaccinated. Yet, the number of exceptions means that the threat of a spread remains just as likely as before. The false sense of security may lead some to use the pool that would not do so otherwise. As a result of using the pool, should there be an outbreak and this elderly person without a vaccine ends up in the hospital or worse, the Association could find itself in serious litigation. Therefore, Associations should not adopt rules making the vaccine a condition of use of the facilities.
While all of us are eager for life to return to normal and to be able to relax at the pool this summer, the fact is that too many unknowns remain. The legal considerations of whether the facilities should be opened are not much different than what they were last year. Vaccines have changed the game quite a bit and many people feel safe enough to return to their pre-COVID lifestyle. However, from a legal standpoint, we are not there yet, and we advise Boards to continue with caution.
Azra Taslimi is a lawyer with Altitude Community Law.