EFFECTIVE JULY 1, 2020

This summary is not a complete list of requirements for all types of businesses and activities covered by the COVID-19 reopening Phase Three Guidelines issued by the Commonwealth of Virginia.  It includes only those Guidelines that are most likely to affect community associations in order to assist associations in making decisions that can affect all of the owners and residents in the community.

The Governor of Virginia is stressing that this Phase Three opening does not mean that Virginia is out of the woods yet and is asking citizens to be responsible and follow these mandatory Guidelines in order to keep Virginia on a positive track and avoid what many States are currently experiencing with record highs in daily positive virus cases.

A complete copy of the Phase Three Guidelines can be found at:  https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/Forward-Virginia-Phase-Three-Guidelines.pdf.

GENERAL GUIDELINES

  1. Virginia is still under a mandate from the Governor that face coverings be worn when in public (with certain health and other exemptions).
  2. Do NOT let the term “Guidelines” fool you. These are not suggestions; they are mandatory requirements and the Guidelines state that you must either “implement the following mandatory requirements or close.” {Emphasis added.}
  3. You must establish AND maintain physical distancing of either six feet (6′) or ten feet (10′) depending on the activity (more on this later).
  4. You must provide a place for owners, residents and anyone else using the association facilities to wash their hands with soap and water OR provide hand sanitizers containing at least 60% alcohol.
  5. You must post signage at the entrance to the pool, clubhouse, fitness center, meeting rooms or any other area within the community that is open to owners and residents stating the following:

(a)      No one with a fever or symptoms of COVID-19 or known exposure to someone with COVID-19 in the last 14 days is permitted to enter.

(b)      Reminders regarding social distancing requirements (see item #2 above), options for high-risk individuals and asking residents to stay home if they are sick.

(c)      The occupancy limit for that particular facility (more on this later).

  1. All frequently touched surfaces must be cleaned with an EPA-approved disinfectant at least every two (2) hours. At a recent SEVA-CAI Seminar Roy Beskin, an association insurance professional with Beskin-Divers Insurance Group, highly recommended that associations do NOT permit owners or other residents to be responsible for disinfecting services as these individuals are NOT covered under an association’s liability policy.  Mr. Beskin recommended hiring a professional cleaning company that provides proof of their own liability coverage and indemnifies the association from liability.

 

INDOOR AND OUTDOOR POOL FACILITIES

  1. Hot tubs, spas, saunas, splash pads, spray pools, and interactive play features must remain closed. If in doubt as to whether or not a pool feature should remain closed (e.g., baby pools), we suggest erring on the side of caution and keeping that facility closed.
  2. Facilities must screen anyone entering the pool area for COVID-19 symptoms prior to admission to the facility. Anyone who has a measured temperature of 100.4 degrees or higher and anyone experiencing other COVID-19 symptoms must not be admitted.  Even though the Guidelines use the word “should” for screening, this is not a suggestion, as screening is listed under mandatory requirements in the Guidelines.  Screening must be conducted in accordance with applicable privacy and confidentiality laws and regulations (more on this later).
  3. Pool facilities may now open at 75% capacity as long as all other Guidelines are met, including the General Guidelines above and these pool facilities Guidelines; provided that ten feet (10’) of distance can be maintained between persons who are not members of the same household.
  4. The disinfecting Guidelines outlined under General Guidelines above must still be maintained even in outdoor pool facilities. All pool furniture (including a life guard station, if applicable) must be cleaned and disinfected after each use AND every two hours.  Requiring residents to perform these disinfecting duties will NOT satisfy these requirements.  In lieu of providing staff, you could choose to remove all furniture and pool accessories and require residents to bring their own seating.
  5. Hand sanitizing stations must be provided at the entrance/exit and where accessories and pool furniture are shared.
  6. Phase Two had restrictions on “free swim” and only allowed lap swimming, diving, instruction and exercise classes. Phase Three will now allow free swim provided that ten feet (10’) of distance can be maintained between persons who are not members of the same household while in the swimming pool.
  7. We have had reports of some owners asking for a reduction in their assessments during the period in which they could not use the pool facilities. As a practical matter, associations still have most of the same expenses in maintaining the pool when it’s not being used as when it is.  Most Associations have pool contractors who maintain the pools and those contracts must still be honored. Insurance policies must also be maintained and the premiums paid.  If Associations can meet all of the Guidelines contained here and choose to open their pools, there will be extra association expenses to provide a cleaning professional and an on-site person to constantly monitor and maintain social distancing and screening requirements.  From a legal perspective, Community Association documents routinely provide that assessments will not abate even when amenities are unavailable so it is not within the Board’s ability to waiver assessments.

FITNESS AND EXERCISE FACILITIES

  1. Facilities must screen anyone entering the pool area for COVID-19 symptoms prior to admission to the facility. Anyone who has a measured temperature of 100.4 degrees or higher and anyone experiencing other COVID-19 symptoms must not be admitted.  Even though the Guidelines use the word “should” for screening, this is not a suggestion, as screening is listed under mandatory requirements in the Guidelines.  Screening must be conducted in accordance with applicable privacy and confidentiality laws and regulations (more on this later).
  2. Spas, saunas and hot tubs must remain closed.
  3. The disinfecting Guidelines outlined under General Guidelines above must still be maintained in fitness/exercise facilities. All equipment must be cleaned and disinfected after each use AND every two hours.  Requiring residents to perform these disinfecting duties will NOT satisfy these requirements.
  4. Hand sanitizing stations must be provided at the entrance/exit and where equipment is shared.
  5. The use of equipment that can’t be cleaned between uses (e.g., climbing ropes, exercise bands, etc.) must be removed. Equipment that requires more than one person to operate (except by members of the same household) must be removed or made inoperable.
  6. Occupancy must be limited to no more than 75% of the lowest occupancy load for the area in which the exercise equipment is located (up from 30% in Phase Two).
  7. Fitness equipment must be separated to insure ten feet (10’) of separation between persons entering the facility and using the equipment.

BOARD AND MEMBERSHIP MEETINGS

  1. The Guidelines do not specifically mention board or membership meetings but it is our opinion that these meetings fall under the “Guidelines For Social Gatherings” section of the Phase Three Guidelines.
  2. Virginia is still in a State of Emergency and until the State of Emergency is lifted, board meetings (but NOT membership meetings) can continue to take place electronically and virtually as long as all statutory requirements for doing so are followed. This exception to the statutory requirements for board meetings was made by the General Assembly earlier this year.
  3. Anyone entering the meeting room must be screened for COVID-19 symptoms prior to admission to the facility. Anyone who has a measured temperature of 100.4 degrees or higher and anyone experiencing other COVID-19 symptoms must not be admitted.  Even though the Guidelines use the word “should” for screening, this is not a suggestion, as screening is listed under mandatory requirements in the Guidelines.  Screening must be conducted in accordance with applicable privacy and confidentiality laws and regulations (more on this later).
  4. The disinfecting Guidelines outlined under General Guidelines above must still be maintained before AND during any meeting that lasts longer than two hours. The Guidelines suggest keeping meetings as short as possible.
  5. Hand sanitizing stations must be provided at the entrance/exit.
  6. Participants are limited to 50% of the lowest occupancy load for the space the meeting is taking place in OR 250 people, whichever is LESS.
  7. We suggest that smaller associations consider having meetings in an outdoor setting if possible.

OTHER ASSOCIATION COMMON AREAS

  1. Playgrounds: While technically playgrounds could be opened with the distancing, disinfecting, sign posting and other requirements under General Guidelines, we recommend keeping playgrounds closed as it is very difficult to clean playground equipment between each child’s use of the equipment and social distancing is pretty much an impossibility with small children.
  2. Dog Parks, Gazebos and other outdoor open areas: These open areas are probably the easiest areas to fully open to residents as long as six feet (6’) of social distancing is maintained and any outdoor equipment that is used by residents (e.g., benches) are cleaned and disinfected on a regular basis.
  3. Elevators, lobbies, stairs, etc. should be cleaned and sanitized regularly, six feet (6’) of social distancing must be maintained, and masks must be required. Hand sanitizing stations should be placed at all entrances/exits. We recognize social distancing in elevators is usually impossible so we suggest posting signs limiting the number of occupants at a time and requiring face masks.
  4. Clubhouses: All disinfecting requirements and posting of the required notice under General Guidelines above must be required and at least six feet (6’) of social distancing must be maintained.  Hand sanitizing stations must also be provided.  Furniture and other surfaces must be disinfected after each use.  We recommend removing or covering furnishings that cannot be cleaned with a disinfectant after each use (e.g., couches) or furnishings that would be damaged by disinfectants (e.g. wood tables).

PRIVACY AND CONFIDENTIALITY LAWS

  1. Even though Associations have the right to screen residents for COVID-19 symptoms before entering Association common areas or facilities and prevent them from using those facilities. Associations should request that residents notify the Association if someone in their household has COVID-19 or has been exposed to someone with COVID-19 but Associations do not have the right to require residents to notify the Association.
  2. If a resident provides that information to the Association when attempting to enter Association facilities or otherwise, the Association must keep that individual’s personal information (name, address, etc.) confidential.
  3. Associations can ask individuals who are known to have COVID-19 or been exposed to someone with COVID-19 if and when they used the common areas or facilities and should notify other residents of that information, without disclosing the name or personal information of the infected resident.

SHOULD THE ASSOCIATION REQUIRE OWNERS TO

SIGN LIABILITY WAIVERS

We have frequently been asked about obtaining waivers of liability to allow the use of swimming pools and other facilities in an effort to have protection, particularly in the event that all the Guidelines are not closely followed.   In Virginia waivers of liability for personal injuries have limited value and are not a guarantee that the Association will not be held liable. That said, a waiver document will state that the person signing it is aware of the particular risk.  Thus, a waiver could be offered to provide support for a defense to a claim based on assumption of risk.  Bear in mind that meeting the burden of proof that a disease was transmitted to the claimant on the premises of your facility is a difficult task.  At the same time, we must keep in mind that insurance coverage by your liability policy is highly unlikely.  You should consult with your association’s attorney further concerning the use of waivers.  If you choose to use a waiver document, we urge that you not rely on a form you procure from the internet considering these unusual circumstances.