April 2021

It seems that as soon as I begin to write a column on the status of the COVID-19 pandemic and associations re-opening, there is a change in the State or local orders, rendering my message obsolete. So, let me start by stating that associations should check State and County websites for the most updated information on your respective association’s restrictions and guidelines. I have included a helpful State of California link at the end of this column.

As of the date of this publication, COVID-19 cases are declining throughout California and we are transitioning from the more restrictive “red tier” to the less restrictive “orange tier”, permitting many businesses to open and increase capacity. The relaxing of restrictions naturally has many homeowners questioning when in-person Board Meetings will reconvene and their association amenities will re-open.

Let me begin by stating that part of my duty as a common interest development managing agent is to help our association clients mitigate risk and liability exposure, so my recommendations err on the side of caution. Ultimately, Board Members, as the Directors and Officers of the corporation, are responsible for determining what is in the best interest of their association. While I fully understand there is pressure from some residents to return to in-person Board Meetings and re-open common area facilities, doing so prematurely presents significant liability risk to the association. Board Members are encouraged to strictly comply with State and local municipal orders and should not feel pressured into re-opening prematurely. After all, it is important to remember that Board Members have a fiduciary duty to represent and protect the association even when the corporation’s interests do not fully align with individual members’ interests or even their own personal feelings and opinions.

Board Meetings

The State of California still encourages telecommuting/telework whenever possible. As such, it is recommended that associations continue to meet virtually. Over the past year, we have become extremely proficient in videoconference platforms, and many Boards have reported increased productivity and member attendance. While many of us miss visiting with our neighbors and friends in person, until it is safe to gather, Board Meetings should continue to be held virtually.

If Boards do decide to meet in person, please ensure indoor capacity is limited per State and County guidelines, social distancing is enforced, and that all attendees wear masks or other face coverings at all times.

Many Boards have asked if they can permanently adopt the videoconference platform for Board Meetings and the answer is yes, with conditions to comply with California civil code requirements. My February 2021 DR. HOA column addressed this topic and detailed the conditions, so please reach out if you would like a copy of my educational column on this matter.

Swimming Pools & Hot Tubs

Outdoor swimming pools and hot tubs may open. At the time of this column, most Southern California Counties are in the “orange tier”, which allows for indoor pools to open when physical distancing can be maintained. If your Association does not have a way to enforce physical distancing requirements, such as patrol personnel or on-site staff, association indoor pools should remain closed. Many association attorneys are recommending that residents sign a liability waiver before using common area facilities, so please consult with your association’s attorney regarding your re-opening plan.

Saunas, steam rooms, and indoor hot tubs must remain closed at this time.

Fitness Centers & Gyms

Pursuant to the State’s “orange tier” guidelines, indoor fitness centers and gyms may open with limited capacity at 25%. It is important that associations have a means to enforce capacity requirements before opening indoor fitness centers. This can be difficult for associations that do not have full-time on-site staff, as operating budgets likely did not account for the additional on-site personnel required to enforce these capacity requirements.

Associations that do plan to open fitness facilities must implement and post the required State and County guidelines and protocols prior to opening. In addition, as with pools, many association attorneys are recommending that residents sign a liability waiver before using common areas facilities, so I recommend you check with your association’s attorney regarding your community’s re-opening plan for fitness centers and gyms.

Vaccinated Residents

As more Californians are vaccinated, there are evolving less-restrictive guidelines for those who are vaccinated. Unfortunately, it is very difficult if not impossible for associations to verify whether members are in fact vaccinated. As such, associations should not attempt to differentiate between vaccinated and non-vaccinated residents. Attempting to do so could expose associations to unnecessary liability as the Board likely does not have the authority to request medical records or condition use of facilities based on vaccination and it could lead to claims of discrimination.

Face Masks & Coverings

Associations should continue to require residents wear facemasks or face coverings whenever feasible, including while walking through common areas, and encourage social distancing.

Board Members should strongly consider revising the association’s operating rules to comply with the changing State and County guidelines. Given that these are emergency rule changes that continue to evolve, the 28-day member review period typically required per civil code is not applicable.

In summary, it is important for associations to continue to closely monitor the changing State and County guidelines related to the COVID-19 pandemic, updating the association’s operating rules and policies accordingly to ensure compliance. If your association does not have the staff or technology to regulate and enforce the required guidelines, you should not open common area facilities until you can ensure compliance. For the latest update on the State and County COVID-19 industry guidance for facilities, visit Guidance Fitness (ca.gov).

If you have specific questions related to your association, please do not hesitate to email Brad Watson, President of PMP Management at bwatson@pmpmanage.com

Please Note:  PMP is not a law firm and nothing contained in this document should be considered legal advice.  Legal questions should be directed to your respective association attorney.