The inevitable has started.  People are suing because of COVID-19 infections.  A Walmart employee died from COVID-19 and his family is blaming Walmart for not protecting him during his employment.  We warned coops, condos and HOAs that lawsuits will likely happen and that they should be mindful of that in making decisions.  

One concern was whether boards should notify residents when employees or residents contract COVID-19.  We understand that some boards are and others aren’t. Some are afraid of violating privacy rights and some are more concerned about protecting their residents.  This unfortunately is a no win situation for boards.  If you take action and notify residents, you may be charged with violating privacy rights.  If you don’t take action and someone is later infected, they may complain that you didn’t take sufficient action to protect them, knowing that a dangerous condition existed in the building. 

In one instance a condominium was already involved in a lawsuit with a unit owner.  Counsel for the unit owner advised the condominium’s attorney that his client contracted COVID-19.  The owner wanted management to know so that delivery rules for the owner could be relaxed.  The notification was more about what can the condo do for the ill resident rather than any worry about the residents in the 100 plus other units. The attorney specifically warned that they will take legal action if the condo advised residents of the name or apartment number of the ill resident. They were unclear as to whether they approved of a general notice to residents that someone in the building tested positive and was ill.  

So, what’s a board and management to do knowing all of that?  They definitely have to comply with the privacy laws and naming the unit owner or apartment number would likely be a problem.  In that particular instance, the unit owner expressly stated through counsel that the unit owner did not consent to being specifically identified.  Other owners in that position may not object to identification in order to protect their neighbors.  If there is an objection to specific identification, a general statement that a resident in the building has contracted COVID-19 and people should be more careful to adhere to CDC guidelines when using the common areas should be ok.  The trouble is that communications demanding specific information will likely happen.  Some managers report that they include in their general communications that specific information cannot be provided and please do not communicate with us asking for this information.  

If the condo board did not generally notify residents and someone contracts the disease in the building, one would expect the same type of lawsuit that Walmart is now facing.  The resident who catches the disease may argue the the condo, like Walmart, didn’t do enough to protect the best interest of their community.  

Coop, condo and HOA Boards and management will continue to face these difficult situations.  How about employees who tested positive for COVID-19 and have recuperated and want to return to work.  These are tough situations for boards and managment, especially because the medical advice has been so equivocal at times including when someone can return to work in an essential job.  The positions on these types of issues seems to change daily.

Now that we are starting to see lawsuits in COVID-19 situations, boards and management have to be more vigilant in doing what is most reasonable for their entire community within the confines of privacy and other laws.  This will have to continue on a case-by-case basis for now.  Getting professional advice as to what is legal and making the most reasonable decision for the entire community based on that advice, is probably the best course of action until we learn more from the Courts in the lawsuits.

Checking your insurance coverage now is also a prudent thing to do.  There may be coverage under your general liability or directors and officers insurance policies.  Your insurance professional should be able to guide you. If you learn that claims arising out of COVID-19 are likely not covered then you may want to consider improving your insurance.

Read a news report on the Walmart lawsuit here .